W'r UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE CODE OF CIVIL PROCEDUEE. THIS CODE SHOULD BE CITED AS Fairall's Code Cw. Proc. T II E CODE OF CIVIL PROCEDURE OF THE STATE OF CALIFORNIA. APPROVED MARCH 11, 1872. WITH AMENDMENTS UP TO AND INCLUDING THOSE OF THE FORTY-FIRST SESSION OF THE LEGISLATURE, 1915. WBiti) Annotations^ Embracing the Decisions of the Courts of Last Resort of the State of California With Frequent Reference to the Decisions of the Courts of Last Resort of Other States, AND of the Federal. Courts. BY CHAELES H. FAIRALL, op the SAN FRANCISCO BAR, AUTHOR OF FAIRALL'S CRIMINAL LAW AND PROCEDURE. IN TWO VOLUMES. VOL. I. Parts I, II— §§ 1-1059. SAN FRANCISCO: BANCROFT-WHITNEY CO:\IPANY 1916 Copyright, 1916, BY BANCEOFT-WHITNEY COMPANY. San Franctsco: Thf. Fii.mkr Brothers Electrotype Company, TVPOGRAPIIERS AND StEREOTYPERS. TO CHARLES JOSEPH HEGGERTY, ESQ. OF THE SAN FRANCISCO BAR, ^f)is WifJtk IS EESPECTFULLY DEDICATED. T^ji^f D PREFACE. This annotated edition of the Code of Civil Procedure is the result of labors extending over a period of seven years, and while the editor was actively ensraged in the practice of the law. The primary object in pub- lishing this edition was to give the profession a practical, workable anno- tated code. To reduce the annotations to narrative form would seem more truly to subserve the real purpose of an annotated code : to place before the practitioner a general outline of the law bearing on each section as construed by the appellate courts. The result of this effort is now submitted to the judgment of the profes- sion ; and the editor gives, at the outset, the assurance of a faithful attempt in what he believes to be the right direction, and that he has spared neither time nor effort in the attempt. The only satisfaction the editor may expect from the result of his labors is the approval of the profession; for no pecuniary compensation, calculated upon the commercial value of the work, could be at all commensurate with the effort made and the work actually performed. It is therefore hoped that the profession, to whom the work is submitted, and for whom alone it was undertaken, will realize and understand not only the difficulties encountered, but also the prodigious labor involved. While endeavoring always, in this edition, to keep in view the principal object of the framers of the code, viz., to make legal proceedings more intelligible, more certain, more speedy, and less expensive, the constant aim has been to combine what have been proven by usage to be the best features of code compilation and annotation — to combine : 1. A genuine text; 2. Ample cross-references; 3. A complete history of the legislation of each section ; 4. Full annotations ; and 5. The original notes of the code commissioners. The aim has been, also, throughout the work, to give the law as it exists, and the construction placed upon it by the court ; to harmonize the decisions wherever a conflict was apparent; to explain discrepancies and contradic- tions, by reference to the law controlling the case under consideration, avoid- ing, wherever possible, any statement Avhere there is a conflict of opinion, but where such conflict cannot be explained, to give authorities upon which the rule is based, A genuine text is the first essential of a code : the law as enacted by the legislature, and not the law as issued by the printer, is desired. Because of errors of so palpable a nature accumulating in each edition of the codes as issued, the copy of this code has been diligently compared with the original documents and engrossed bills on file in the office of the secretary of state, so that the present text goes to press free from the errors found in previous editions. In this effort to secure accuracy, much light was thrown on the origin of the statutes. Thus, among other things, it was found that §§ 798, 799, 800, and 801 had never been officially published in the statutes, but were enacted April 1, 1872, and inserted in the original edition of the code published in (vii) Vlil PREFACE. that year. It will be remembered that the Code of Civil Procedure was appi-oved by Governor Booth on March 11, 1872. Cross-references are made not only to the different parts, or departments, of this code, but also to the other codes, as well as to the judicial decisions and annotations of various standard annotated reports published in America. The legislative history of each section has been prepared with great care, and with attention to detail; the object in view being, to give not only the source of the statute, but also the amendments made by the legislature from time to time. The value of this department of the code is manifest, showing, as it does, the text of each section governing the action or pro- ceeding at the time the decision of the appellate court therein was rendered. A fuller use of this legislation will, it is believed, explain many apparent conflicts in the decisions of the appellate courts. The annotations in this edition are extensive and complete. The arrange- ment of the notes is in a convenient form, with headings in black-faced type, that appropriately indicate the subject-matter, and aptly refer to the text of the statute. The notes of the code commissioners have been reprinted in this edition for the purpose of further explaining and construing the sections to which they relate. These notes show not only the legislation upon which the section is based, but also the decisions of the supreme court; and in many cases it will be found that the code section was based upon a judicial decis- ion of this or of a sister state, as well as upon decisions of English courts, and in some instances upon statements of law contained in standard text- books of law-writers. These notes of the code commissioners therefore furnish the truest guide to the proper construction of the code ; and it is unfortunate that hitherto they have not been readily accessible to the pro- fession, as a more frequent reference to them, and a careful study of the cases cited therein, might have tended to simplify our practice. A careful and analytical study of the decisions of the appellate courts con- struing the inapt legislative expre.s.sions in frequent amendments will convince the profession that the only solution of the question of the simplification of practice is to take that matter entirely out of the hands of the legislature, and regulate practice by rules of court, as has been done successfully in several states. The great mass of decisions which have accumulated upon questions of practice must necessarily have a disheartening effect upon a student of the law. We find decision after decision upon questions so simple that they never should have been entertained by any court. It has been said, and truly said, that three fourths of the decisions of our appellate courts are based upon questions of practice, and it may be further truthfully asserted, that at least fifty per cent of these questions of practice have been raised and decided many times, all of which will be clear from an examination of the authorities cited in the annotations in these volumes. CHARLES H. FAIR ALL. San Fea.scisco, Califoenia. GENESIS AND GKOWTH OF THE CODES. The adoptiou of the codes in 1872 grew out of an effort to revise and com- pile the laws of the state. In 1868, J. B. Harmon, John Currey, and Henry P. Barber were appointed as commissioners "to revi.se and compile all the laws of this state," by "An Act to provide for the revision and compilation of the laws of the state of California and the publication thereof," approved March 28, 1868 (Stats. 1867-68, p. 435). For reasons not published, this commission was not permitted to complete its laliors, but the legislature, by "An Act establisliing a commission for the revision of the laws," approved April 4, 1870 (Stats. 1869-70, p. 774), pro- vided for the appointment of another commission, consisting of three per- sons, to be appointed by the governor, to "continue the labors " of that appointed in 1868, and "to revise all the statutes of this state, including those enacted at the present session of the legislature, and correct verbal errors and omissions, and suggest such improvements as will introduce precision and clearness into the wording of the statutes, and by a supple- mental report thereto to designate the acts or parts of acts which, in the opinion of the commission, should be repealed, and prepare substitutes therefor when necessary; to recommend all such enactments as shall, in the judgment of the commission, be necessary to supply the defects of and give completeness to the existing legislation of the state, and prepare and pre- sent the bills therefor; to examine all special acts, and such as are confined in their operation to particular counties or cities, and to propose such measures as shall be necessary to give unity and uniformity thereto, and especially to propose, when possible, general acts, which shall supersede the same ; to arrange the statutes in the most systematic and convenient form, and furnish a complete and alphabetical list of the matters contained therein, which, in future, may be made the basis of an index." The second code commission w^as composed of Ci-eed Raymond, John C. Burch, and Charles Lindley. Differences of opinion arising, John H. MeKune w^as appointed commissioner upon the retirement of Judge Lindley, and the complete drafts of the four codes were issued by the state printer in 1871-72. While the legislature adopted the drafts of the codes substantially as reported, yet many amendments Avere made, both in the arrangement of the subject-matter and in the language of the text submitted, as will be seen upon consulting the enrolled bills signed by Governor Booth in 1872. The code system is, for convenience and partial classification, divided into four codes, to each of which a name is given; but they are inseparably interwoven with one another, and no one of them is complete in itself, or absolutely confined to a particular subject. (See Enos v. Snyder, 131 Cal. 72 ; 63 Pae. 170 ; Lewis v. Dunne, 134 Cal. 294 ; 66 Pac. 478.) The idea prevails generally, in California, that our code is but a repro- duction of that of New York, while, in fact, our Code of Civil Procedure is based largely upon the Practice Act and the Probate Act of 1851. Although many of the sections of these two acts were substantially the same as exist- {ix) X GENESIS AND GROWTH OP THE CODES. ing New York statutes, j-et, as a whole, they bear a more striking resem- blance to the statutes of 1850 and to the decisions of our own state. It is true that David Dudley Field and his collaborators in New York had drafted a code system for that state as earh^ as 1849-65, but it was not adopted until after 1850. and indeed their draft of a Code of Civil Proce- dure was never adopted by that state. Our Probate Act and Practice Act were based almost entirely upon cer- tain acts of the first session of our legislature (1849-50) at San Jose. In short, they were mere codifications of those statutes. As to the origin of the statutes themselves we are left in doubt. At that time the report of the code commissioners of New York, covering the subject of procedure, was not available, and was not given to the legislature of that state until December 31, 1849. "While it is true that many of the provisions of the acts of that first ses- sion of our legislature are substantially the same as the New York statutes, yet such acts are in no sense copies of the laws of any particular state. Such legislation was undoubtedly the work of the legislative judiciary com- mittees, supplemented by the investigations of members of the San Fran- cisco bar, who were strenuously opposing the proposition to adopt the civil law, (as recommended by Governor Burnett in his message,) instead of the common law. The advocates of the common law finally prevailed, and it was made the rule of decision in this state. The completion of the labors of these men was the embodiment, in several acts, of the principles of common-law procedure, as modified by legislation in the several states of the Union. The rules of that practice, far from being the work of any particular body of men, were the common heritage of the English-speaking people, and the result of the exyjerience of ages. The statutes of all the states, and the decisions of the courts, both of America and England, were drawn upon for the principles embodied in our first legislative enactments, and harmonized to fit the conditions of the new state. On March 18, 1872. after the adoption of our code, David Dudley Field sent the following telegram to the code commissioners of this state: "All honor to you for your great work accomplished! It Mali be the boast of California, that, first of English-speaking states, she set the example of written laws as the necessary complement of a written constitution for a free people." ^ ^ C. H. F. ANALYSIS OF CONTENTS OF VOLUME I. TITLE OP ACT. § 1. Title and division of this volume. PEELIMINARY PROVISIONS. 5 2. When this code takes effect. § 18. Statutes, etc., inconsistent with code re- § 3. Not retroactive. pealed. § 4. Rule of construction of this code. § 19. This act, how cited, enumerated, etc. § 5. Provisions similar to existing laws, how § -0. Judicial remedies defined. construed. S21. Division of judicial remedies. § 6. Tenure of offices preserved. § 22. Action defined. § 7. Construction of repeal as to certain offices. §23. Special proceeding defined. § 8. Actions, etc., not affected by this code. § 24. Division of actions. § 9. Limitations shall continue to run. § 25. Civil actions arise out of obligations or § 10. Holidays. injuries. §11. Same. §26. Obligation defined. §12. Computation of time. §27. Division of injuries. § 13. Certain acts not to be done on holidays. § 28. Injuries to property. I 14. "Seal" defined. § 29. Injuries to the person. I 15. Joint authority. § 30. Civil action, by whom prosecuted. § 16. Words and phrases. § 31. Criminal actions. § 17. Certain terms used in this code defined, § 32. Civil and criminal remedies not merged. PART I. COURTS OF JUSTICE. TITLE I. ORGANIZATION AND JURISDICTION. Chapter T. Courts of Justice in General. §§33,34. II. Court of Impeachment. §§35-39. III. Supreme Court. §§40-64. IV. Superior Courts. §§65-79. V. Justices' Courts. §§82-119. Article I. Justices' Courts in Cities and Counties. §§85-100. II. Justices' Courts in Townships. §§103-109. III. Justices of the Peace and Justices' Courts in General. §§110-119. VI. Police Courts. § 121. yil. General Provisions Respecting Courts of Justice. §§ 124-153. Article I. Publicity of Proceedings. §§124,125. II. Incidental Powers and Duties of Courts. §§128-131. III. Judicial Days. §§133-135. IV. Proceedings in Case of Absence of Judge. §§ 139, 140. V. Provisions Respecting Places of Holding Courts. §§ 142-144. VI. Seals of Courts. §§ 147-153. CHAPTER I. COURTS OF JUSTICE IN GENERAL. § 33. Courts of justice in general. I 34. Courts of record. CHAPTER II. COURT OF IMPEACHMENT. § 35. [Amended and reniimbered section.] § 38. Officers of the court. § 36. Members of the court. § 39. Trial of impeachments provided for in the § 37. Jurisdiction. Penal Code. (xi) xu CONTENTS. CHAPTER Til. SUPREME COURT. § 40. Justices, elections, and terms of office. § 41. Coiiiputution of years of office. § 42. Vacancies. § 43. Departments. § 44. Apportionment of business. I 45. Court in bank. § 46. Absence or disability of chief justice. § 47. Sessions. Expenses. i 48. Adjournments. S 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 casts. § 57. Appeals in probate proceedings and con- tested election cases. § 58. [Related to terms of district court. Re- pealed. §§ 59-64. Same.] CHAPTER IV. SUPERIOR COURTS. § 65. Judges and elections. § 66. Counties having two or more judges. § 67. Superior court of the city and county of San Francisco. § 67a. Superior court of Los Angeles County. § 67b. Extra sessions of the superior court. § 68. Terms of office. § 69. Computation of years of office. § 70. Vacancies. § 71 5 72 Superior courts, by judges of other counties 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. CHAPTER V. JUSTICES' COURTS. Article I. Justices' Courts in Cities and Counties. §§82-98. II. Justices' Courts in Townships. §§99-109. III. Justices of the Peace and Justices' Courts in General. §§ 110-119. ARTICLE I. JUSTICES' COURTS IN CITIES AND COUNTIES. § 82. [Related to county courts. §§ 83, 84. Same.] § 85. Justices' courts and justices. § 86. Clerks of justices' courts. § 87. Sheriff and deputies. § 88. Offices and office hours. § 89. Actions. § 90. Reassignment and transfer of actions. Repealed. § 91. Payment of fees. § 92. Certificates, transcripts, and other p.npers. § 93. Justices' docket. § 94. Territorial extent of jurisdiction. § 95. Practice and rules. § 96. Attorney. 'Who shall not act as. § 97. Salaries. § 98. What justices successors of others. ARTICLE II. JUSTICES' COURTS IN TOWNSHIPS. § 99. Justices' courts and justices in town- ships having a population between two hundred and fifty thousand and § four hundred thousand. § I 100. Return of process. § 101. Appointment of justices' clerk. § 102. I^uties of justices' clerk. § 102a. Fees. § 102b. Salaries of justices and clerks. §103. Justices' courts and justices. In counties. § In cities of various classes. Jurisdic- § tion. Qualifications. Salaries. Fees. § § 103 J. Clerk to justice's court in cities of second and one half and third classes, duties, etc. 103a. Justices' clerks, additional powers of. 103b. Justices' clerks in counties of the seventh class, appointed when, and powers and duties of. 104. Courts, where held. 105. What justice may hold court for an- other. 106. Territorial extent of civil jurisdiction. 107. What justices successors of others. 108. [Related to municipal criminal court of San Francisco. Repealed. § 109. Same.] ARTICLE III. JUSTICES OF THE PEACE AND JUSTICES' COURTS IN GENERAL. § 110. Term of office. § 1 1 1. Vacancies. § 112. Civil jurisdiction. $113. Concurrent jurisdiction. § 114. Civil jurisdiction restricted. §115. Criminal jurisdiction. fReppaUd.l § 116. [Amended and renumbered section. §§117-119. Same.] CHAPTER VI. POLICE COURTS. I 121. Provided for in Political Code. CONTENTS. XIU CllAi'TER VII. GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE. Article I. Publicity of Proceedings. §§ 124, 12o. II. Incidental Powers uixi l)uties of Courts. §§ lL'8-131. III. Judicial Days. §§ K53-135. IV. Proceetlinjis in Case of Absence of Judge. §§ 139, 140. V. Provisions Respecting Places of Holding Courts. §§ 142-144. VI. Seals of Courts. §§147-153. ARTICLE I. PUBLICITY OF PROCEEDINGS. § 124. Sittings, public. * § 125. Sittings, wlieii private. ARTICLE II. INCIDENTAL POWERS AND DUTIES OF COURTS. § 128. Povcers respecting conduct of proceedings. § 131. Probationary treatment of juvenile of- § 129. Courts of record may make rulos. fenders. S 130. When rules take effect. ARTICLE in. JUDICIAL DAYS. § 133. Days on which courts, etc., may be held. § 135. Appointments on non judicial days. § 134. Non-judicial days. ARTICLE IV. PROCEEDINGS IN CASE OF ABSENCE OF .JUDGE. § 139. Adjournment for absence of judge. §140. Adjournment till next regular session. [Repealed.] ARTICLE V. PROVISIONS RESPECTING PLACES OF HOLDING COURTS. § 142. Change in certain cases of place of hold- § 143. Parties to appear at place appointed. ing court, § 144. When sheriff to provide courtrooms, etc. ARTICLE VI. SEALS OF COURTS. 5 147. What courts shall have seals. § 151. Seals, how provided; private seals, when § 148. Seal of supreme court. used. §149. Seals of superior courts. §152. Clerk of court to keep seal. § 150. Seals of police courts of cities and coun- § 153. Seals of courts, to what documents af- ties. fixed. TITLE IL JUDICIAL OFFICERS. Chapter I. Judicial Officers in General. §§156-162. II. Powers and Duties of .Judges at Chambers. §§ 165-167. III. Disqualifications of Judges. §§170-173. IV. Incidental Powers and Duties of Judicial Officers. §§ 176-179. V. Miscellaneous Provisions Respecting Courts and Judicial Officers. §§ 182-1S8. CHAPTER I. JUDICIAL OFFICERS IN GENERAL. §156. Qualifications of justices of supreme court. of governor. § 157. Qualifications of superior judges. § 161. Justices and judges ineligible to other §158. Residence of superior judges. than judicial office. § 159. Residence and qualification of justices of § 162. County or prol)ate judge who may hold the peace. term in another county. How desig- § 160. Judges holding superior courts at request nated. [Repealed.] xiY CONTENTS. CHAPTER II. POWEES AND DUTIES OF JUDGES AT CHAMBERS. § 165. Powers of justices of supreme court at § 167. [Related to powers of probate judges at chambers. chambers. Repealed.] § 166. Powers of superior judges at chambers. CHAPTER III. DISQUALIFICATIONS OF JUDGES. § 170. Disqualification of judicial officer to sit § 172. No judicial officer to have partner prac- or act ticing law. § 171. Judges and county clerks, when pro- § 173. [Renumbered and amended section.] hibited from practicing law. CHAPTER IV. INCIDEXTAL POWERS AND DUTIES OF JUDICIAL OFFICERS. § 176. Powers of justice or judge out of court. § 178. To punish for contempt. §177. Powers of judicial officers as to conduct §179. To take acknowledgments and affidavitg, of proceedings. CHAPTER V. MISCELLANEOUS PROVISIONS RESPECTING COURTS AND JUDICIAL OFFICERS. § 182. Subsequent applications for orders re- § 18.5. Proceedings to be in English language. fused, when prohibited. §186. Abbreviations and fitrures. §183. Violations of preceding section. §187. Means to carry jurisdiction into effect. § 184. Proceedings not affected by vacancy in § 188. Disposition of funds paid to clerk or o&ce. treasurer by order of court. TITLE III. PERSONS SPECIALLY INVESTED WITH POWERS OF A JUDICIAL NATURE. Chapter L Jurors. Articles I-XII. §§ 190-254. II. Court Commissioners. §§258,259. CHAPTER L JURORS. Article I. Jurors in General. §§190-195. II. Qualifications and Exemptions of Jurors. §§198-202. III. Of Selecting and Returning Jurors for Courts of Record. §§ 204-211. IV. Of Drawing Jurors for Courts of Record. §§ 214-221. V. Of Summoning Jurors for Courts of Record. §§ 225-228. VI. Of Summoning Jurors for Courts not of Record. §§230-232. Vll. Of Summoning Juries of Inquest. §235. VIII. Obedience to Summons, ho\y Enforced. § 238. rX. Of Impaneling Grand Juries. §§241-243. X. Of Impaneling Trial Juries in Courts of Record. §§246-248. XL Of Impaneling Trial Juries in Courts not of Record. §§250,251. XIL Of Impaneling Juries of Inquest. § 254. ARTICLE I. JURORS IN GENERAL. § 190. .Jury defined. § 193. Trial jury defined. §191. Different kinds of juries. §194. Number of a trial jury. § 192. Grand jury defined. § 195. Jury of inquest defined. ARTICLE II. QUALIFICATIONS AND EXEMPTIONS OF JURORS. 5 198. Who competent to act as juror. § 201. Who may be excused. § 199. Who not competent to act as juror. § 202. Affidavit of claim to exemptioa, §200. Who exempt from jury duty. CONTENTS. XV ARTICLE IIL OF SELECTING AND RETURNING JURORS FOR COURTS OF RECORD. § 204. Jury-lists, by whom and when to be made. § 208. Certified list to be filed with clerk of § 205. Selection niul listing' of persons suituble superior rourt. and competent to serve as jurors. § 209. Duty of clerk. .lury-boxes. §206. Lists to contain how many names. §210. Kccular jurors to si-rve one year. § 207. Person who served as juror during preced- § 211. .lurors to bo drawn from boxes. ins year not to be selected. [Repealed.] ARTICLE IV. OF DRAWING JURORS FOR COURTS OF RECORD. § 214. Order of judce or judges for drawing of pealed.] jury. § 218. Shall proceed, when. [Repealed.] §215. When clerk shall draw. §219. Drawing, how conducted. § 216. Sheriff and judge to witness drawing. § 220. Preservation of ballots drawn. [Repealed.] § 221. Copy of list to be furnished by clerk. § 217. Drawing, when to be adjourned. [Re- [Repealed.] ARTICLE V. OF SUMMONING JURORS FOR COURTS OF RECORD. §225. Sheriff to summon jurors, how. §227. Of summoning jurors to complete a panel. §226. Of drawing and summoning jurors to at- §228. Compensation of elisor, teud forthwith. ARTICLE VI. OF SUMMONING JURORS FOR COURTS NOT OF RECORD. §230. Jurors for justices' or police courts. §232. Officer's return. §231. How to be summoned. ARTICLE VII. OF SUMMONING JURIES OF INQUEST. § 235. How to be summoned. ARTICLE VIII. OBEDIENCE TO SUMMONS, HOW ENFORCED. § 238. Attachment and fine. ARTICLE IX. OF IMPANELING GRAND JURIES. § 241. Grand juries, when and by whom impan- § 243. Manner of impaneling prescribed in Penal eled. Code. § 242. How constituted. ARTICLE X. OF IMPANELING TRIAL JURIES IN COURTS OP RECORD. § 246. Clerk to call list of jurors summoned. § 248. Counties having more than one judge. § 247. Manner of impaneling prescribed in part two. ARTICLE XL OF IMPANELING TRIAL JURIES IN COURTS NOT OF RECORD. § 250. i'roceedings in forming jury. § 251. Manner of impaneling. ARTICLE XII. OF IMPANELING JURIES OF INQUEST. § 254. Manner of impaneling. CHAPTER II. COURT COMMISSIONERS. § 258. Appointment and qualifications. I 259. Powers of court commissioners. XVI CONTENTS. TITLE IV. MINISTERIAL OFFICERS OF COURTS OF JUSTICE. Chapter I. Of Ministerial Officers Generally. § 262. II. Secretaries and Bailiffs of the Supreme Court. §§ 265, 266. III. Phonographic Reporters. §§ 268-274b. CHAPTER I. OF MINISTERIAL OFFICERS GENERALLY. § 262. Election, tt'rms, powers, and duties, where prescribed. CHAPTER II. SECRETARIES AND BAILIFFS OF THE SUPREME COURT. § 265. Appointment. § 266. Tenure of office, and dutiei. CHAPTER III. PHONOGRAPHIC REPORTERS. ? 268. Phonographic reporters for supreme court, § 272. Oath of office. ■where provided for. § 273. Reports prima facie correct statements. §269. Phonographic reporters for superior courts, §274. Fees. their appointment, and duties. § 274a. Transcribing of opinions and instructions, § 270. Qualifications and test of competency. a county charge. Pro tempore reporters. § 274b. Fees and compensation of phonographic § 271. Attention to duties. Reporters pro tern- reporter. pore. TITLE V. PERSONS SPECIALLY INVESTED WITH MINISTERIAL POWERS RELATING TO COURTS OF JUSTICE. Chapter I.- Attorneys and Counselors at Law. §§275-299. II. Other Persons Invested with Such Powers. § 304, CHAPTER I. ATTORNEYS AND COUNSELORS AT LAW. § 275. Who may be admitted as attorneys. § 286. Death or removal of attorney. §276. Qualifications. §287. Causes for which court may remove at- § 277. Certificate of admission and license. torney. § 278. Oath. § 288. Conviction of felony. §279! Attorneys of other states. §289. Proceedings for removal or suspension. § 280. Roll of attorneys. § 290. Accusation. § 280a. Effect of diploma granted by Hastings § 291. Verification. College of the law. § 292. Citation of accused by publication. § 280b. Admission to practice law on diplomas § 293. Appearance. from certain universitits. § 294. Objections to accusation. § 281. Penalty for practicing without licenge. § 295. Demurrer. I 282. Duties. § 296. Answer. § 283. Authority. § 297. Trial. I 284. Change of attorney. § 298. Reference to take depositions. J 285. Notice of change. § 299. Judgment. CHAPTER II. OTHER PERSONS INVESTED WITH SUCH POWERS, g 304. Receivers, executors, administrators, tind guardians. CONTENTS. XVll PART II. CIVIL ACTIONS. titlf: I. FORM OF CIVIL ACTIONS. § 307. Onp fnrm of civil ai'tion only. § 308. Partios to actions, how designated- § 309. Special issues not made by pleadings, how tried. TITLE IL TIME OF COMMENCING CIVIL ACTIONS. Chapter I. Time of Commencing Actions in General. §312. II. Time of Commencing Action for Recovery of Real Property. §§ 31.""?)28. III. Time of Commencing Actions Other than for Recovery of Real Property. §§ 335- 349. IV. General Provisions as to Time of Commencing Actions. §§ 350-3G3. CHAPTER I. TIME OF COMMENCING ACTIONS IN GENERAL. § 312. Commencement of civil actions. CHAPTER II. TrVIE OF COMMENCING ACTIONS FOR RECOVERY 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 gran- tees are to bo brought within five years. § 318. Seisin within five years, when necessary in action for real property. § 319. Such seisin, when necessary in action or defense arising out of title to or rents of real property. § 320. Entry on real estate. § 321. Possession, whin presumed. Occupation deemed under legal title, unless adverse. § 322. Occupation under written instrument or judgment, when deemed adverse. § 323. What constitutes adverse possession un- der written instrument or judgment. § 324. Premises actually occupied under claim of title deemed to be held adversely. § 325. What constitutes adverse possession un- der claim of title not written. § 326. Relation of landlord and tenant as affect- ing adverse possession. § 327. Right of possession not affected by descent cast. § 328. Certain disabilities excluded from time to commence actions. CHAPTER III. TIME OF COMMENCING ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. § 335. Periods of limitation prescribed. § 336. Within five years. § 337. Within 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 pro- vided for. § 344. Where cause of action accrues on mutual account. § 345. Actions by tlie people subject to the limi- tations of this chapter. § 346. Action to redeem mortgaire. § 347. Same, when some of mortgagors are not entitled to redeem. § 348. No limitations where money deposited in bank. § 349. Time for commencing actions under "local improvement act of 1901." XVIU COXTENTS. CHAPTER IV. GENERAL PROVISIONS AS TO TIME OF COMMENCING ACTIONS. § 350. "When an action is commenced. § 351. Exception, where defendant is out of the state. § 352. Exception, as to persons under disabil- ities. § 353. Provision where person entitled dies be- fore limitation expires. § 354. In suits by aliens, time of war to be de- ducted. § 355. Provision where judgment has been re- versed. § 356. Provision where action is stayed by in- junction. § 357. Disability must exist when right of action accrued. When two or more disabilities exist, etc. This title not applicable to actions against directors, etc. Limitations in such cases prescribed. 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. § 358. § 359. § 360. TITLE III. PARTIES TO CIVIL ACTIONS. § 367. Action to be in name of party in interest. § 381. § 368. Assignment of thing in action not to pre- judice defense. § 382. § 369. Executor, trustee, etc., may sue without joining the persons beneficially inter- ested. § 383. § 370. Married woman as party to action. § 371. Wife may defend, when. § 372. Appearance of infant, etc., by guardian. § 384. May compromise. § 373. Guardian, how appointed. § 385. § 374. Unmarried female may sue for her own seduction. § 375. Father, etc., may sue for seduction of § 386. daughter, etc. § 376. Father, etc., may sue for injury or death of child. § 387. § 377. When representatives may sue for death of one caused by the wrongful act of § 388. another. § 378. Who may be joined as plaintiffs. § 389. I 379. W^ho may be joined as defendants. § 380. Parties defendant in an action to deter- § 390. mine conflicting claims to real property. Parties holding title under a common source, 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 the dif- ferent parties to commercial paper or insurance policies. Tenants in common, etc., may sever in bringing or defending actions. Action, when not to abate by death, mar- riage, or other disability. Proceedings in such case. Another person may be substituted for the defendant. Conflicting claims, how made. Intervention, when it takes place, and how made. Associates may be sued by name of as- sociation. Court, when to decide controversy or to order other parties to be brought in. Actions against fire departments. TITLE IV. 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. § 395. Actions to be tried in county in which defendant resides, etc. If defendant does not reside in state. § 396. Action may be tried in any county, unless the defendant demand a trial in the proper county. § 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 transferred. TITLE V. MANNER OF COMMENCING CIVIL ACTIONS. § 405. Actions, how commenced. § 406. Complaint, how indorsed. When sum- mons may be issued, and how waived. § 407. Summons, how issued, directed, and what to contain. § 408. Manner and time of issuing alias sum- mons. § 409. Notice of the pendency of an action af- fecting the title to real property. § 410. Summons, how served and returned. § 411. Summons, how served. § 412. Cases in which service of summons may be by publication. Certificate of resi- dence. §413. Manner of publication. I 414. Proceedings where there are several de- fendants, and part only are served. § 415. Proof of service, how made. § 416. When jurisdiction of action acquired. CONTENTS. XIX TITLE VI. PLEADINGS IN CIVIL ACTIONS. Chapter I. Pleadings in Genpral. §§420-422. II. Complaint. §§ 42;V427. III. Demurrer to Coinpl.iint. §§430-434. IV. Answer. §§ 437-442. V. Demurrer to Answer. §§443,444. VI. Verification of I'leadings. §§ 44(>-449. VII. General Kules of Pleading. §§452-465. VIII. Variance. Mistakes in Pleadings and Amendments. §§469-476. CHAPTER L PLEADINGS IN GENERAL. §420. Definition of pleadings. of pleadings. §421. This code prescribes the form and rulos §422. What pleadings are allowed. CHAPTER 11. COMPLAINT. 5 425. Complaint, first pleading. § 426a. Statement of facts in divorce complaint. § 426. Complaint, what to contain. § 427. What causes of action may be joined. CHAPTER III. DEMURRER TO COMPLAINT. § 430. When defendant may demur. complaint is amended. § 431. Demurrer must specify grounds. May be § 433. Objection not appearing on complaint, taken to part. May answer and demur may be taken by answer. at same time. § 434. Objections, when deemed waived. § 432. What proceedings are to be had when CHAPTER IV. ANSWKR. § 437. Answer, what to contain. § 440. Counterclaim not barred by death or as- § 437a. Actions to recover insurance. What de- signment. fendant claiming exemption must set up. § 441. Answer may contain several grounds of § 438. When counterclaim may be set up. defense. Defendant may answer part § 439. When defendant omits to set up counter- and demur to part of complaint, claim. § 442. Cross-complaint. CHAPTER V. DEMURRER TO ANSWER. § 443. When plaintiff may demur to answer. I 444. Grounds of demurrer. CHAPTER VL VERIFICATION OF PLEADINGS. § 446. Verification of pleadings. strument set out in answer, its execu- § 447. Copy of written instrument contained in tion admitted, unless denied by plaintiff complaint admitted, unless answer is under oath. verified. § 449. E.xceptions to rules prescribed by two § 448. When defense is founded on written in- preceding sections. CHAPTER VII. GENERAL RULES OF PLEADING. §452. Pleadings to be liberally construed. §454. How to state an account in a pleading. § 453. Sham and irrelevant answers, etc., may § 455. Description of real property in a pleading, be stricken out. § 456. Judgments, how pleaded. XX CONTENTS, § 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 com- plaint. § 461. Answer in such cases. § 462. Allegations 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. VAEIAXCE. CHAPTER VIII. MISTAKES IN PLEADINGS AND AMENDMENTS. § 469. Material variance, how provided for. § 470. Immaterial variance, how provided for. § 471. What not to be deemed a variance. § 472. Amendments of course, and effect of de- murrer. § 473. Amendments by the court. Enlarging time to plead and relieving from judg- ments, 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. TITLE VII. PROVISIONAL REMEDIES IN CIVIL ACTIONS. Chapter I. Arrest and Bail. §§478-504. II. Claim and Delivery of Personal Property. §§509-521. III. Injunction. §§ 525-533. IV. Attachment. §§ 537-560. V. Eeceivers. §§ 564-570. YI. Deposit in Court. §§572-574. CHAPTER L AEEEST AND BAIL. § 478. No person to be arrested except as pre- § 492. scribed by this code. § 479. Cases in which defendant may be arrested. § 493. § 480. Order for arrest, by whom made. § 481. Affidavit to obtain order, what to contain. § 494. § 482. Security by plaintiff before order of § 495. arrest. § 496. § 483. Order, when made, and its form. § 497. § 484. Affidavit and order to be delivered to the § 498. sheriff, and copy to defendant. § 499. § 485. Arrest, how made. § 500. § 486. Defendant to be discharged on bail or deposit. § 501. § 487. Bail, how given. § 488. Surrender of defendant. § 502. § 489. Same. § 503. § 490. Bail, how proceeded against. § 491. Bail, how exonerated. § 504. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. Notice of justification. New undertaking, if other bail. Qualifications of bail. Justification of bail. Allowance of bail. Deposit of money with sheriff. Payment of money into court by sheriff. Substituting bail for deposit. Money deposited, how applied or disposed of. Sheriff, when liable as bail, and his dis- charge from liability. Proceedings on judgment against sheriff. Motion to vacate order of arrest or re- duce bail. Affidavits on motion. When the order vacated or bail reduced. CHAPTER II. CLAIM AND DELIVEEY OF PEESONAL PEOPEETY, § 509. Delivery of personal property, when it § 515. may be claimed. § 516. § 510. Affidavit and its requisites. § 517. § 511. Requisition to sheriff to take and deliver the property. §518. § 512. Security on the part of the plaintiff, and § 519. proceedings in serving the order. § 520. § 513. Exception to sureties and proceedings thereon, or on failure to accept. § 521. § 514. Defendant, when entitled to redelivery. Justification of defendant's sureties. Qualification of sureties. Property, how taken when concealed in building or inclosure. Property, how kept. Claim of propertj' by third person. Notice and affidavit, when and where to be filed. Protection of plaintiff in possession of property. CHAPTER III. INJUNCTION, § 525. Injunction, what is, and who may grant it. § 526. When it may be granted. § 526a. Actions by taxpayers to enjoin illegal ex- penditure or waste by public officers. § 527. Injunction. Notice. Party obtainins order must be ready. Defendant entitled to continuance. Procedure, § 528. Injunction after answer. § 529. Security upon injunction. § 530. When injunction for use of water may be refused upon defendant giving bond. § 531. Injunction to suspend business of a cor- poration, how and by whom granted. § 532. Motion to vacate or modify injunction. Bond on modification. § 533. W'hen to be vacated or modified. CONTENTS. XXI CHAPTER IV. ATTACHMENT. § 537. Attarhmont, whsn and in what cases may issui'. § r>:iS. Affidavit for attachmnnt, what to contain. S 539. Undertakin;; on attachment. Exceptions to sureties. § 540. Writ, to whom directed and what to state. § 541. Shares of stock and debts due defendant, how attached and disposed of. § 542. How ri'al and personal property shall be attached. § 542a. Lien of attachment. § 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. § 546. Inventory, how made. Party refusinc: to give memorandum may be compelled to pay costs. § 547. Perishal)le property, how sold. Accounts without suit to be collected. § 548. Property attached may be sold as under execution, if the interests of the parties require. § 549. When property claimed by a third party, how tried. § 550. If plaintiff obtains judgment, how satis- fied. § 551. When there remains a balance due, how collected. § 552. When suits may be commenced on the undertaking. § 553. If defendant recovers judgment, 'what the sheriff is to deliver. § 554. Proceedings to release attachments. § 555. Attachment, in what cases it may be re- leased 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. § 560. Release of real property from attach- ment. CHAPTER V. EECEIVERS. § 564. Appointment of receiver. § 567. § 565. Appointment of receivers upon dissolu- § 568. tion of corporations. § 569. § 566. Receiver, restrictions on appointment. Ex § 570. parte application, undertalcing on. Oath and undertaking of receiver. Powers of receivers. Investment of funds. Disposition of unclaimed funds in hands of receiver. § 572. § 573. CHAPTER VI. DEPOSIT IN COURT. Deposit in court. Money paid to clerk must be deposited § 574. with county treasurer. Manner of enforcing the order. TITLE VIII. TRIAL AND JUDGMENT IN CIVIL ACTIONS. Judgment in General. §§ 577-583. Judgment upon Failure to Answer. § 585. Issues. Mode of Trial, and Postponements. §§ 588-596. Trial by Jury. §§ 600-628. Article I. Formation of Jury. §§600-604. II. Conduct of Trial. §§607-619. III. The Verdict. §§624-628. Trial by Court. §§ 631-636. References and Trials by Referees. §§ 638-645. Provisions Relating to Trials in General. §§ 646-663a. Article I. Exceptions. §§ 646-653. II. New Trials. §§ 656-663a. VIII. Manner of Giving and Entering Judgment. §§ 664-680^^, Chapter I. II. III. IV V. VI. VII. 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 proceed as to others. § 580. The relief to be awarded to the plaintiff. § 581. Action may be dismissed, or nonsuit en- tered. § 581a. Dismissal of action for failure to issue summons, when. § 581b. Dismissal of actions after transfer. § 582. All other judgments are on the merits. S 583. Dismissal of actions. XX 11 CONTENTS. § 588. § 589. § 590. § 591. § 592. CHAPTER II. JUDGMENT UPON FAILURE TO ANSWER. § 585. In what cases judgment may be had upon failure of defendant to answer. CHAPTER III. ISSUES. MODE OF TRIAL, AND POSTPONEMENTS. § 593 Issue defined, and the different kinds. Issue of law, how raised. Iesu« of fact, how raised. Issue of law, how tried. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. Clerk must enter causes on the calendar, to remain until disposed of. When may be restored. § 594. Parties may bring issue to trial. § 595. Motion to postpone a trial involving title to mining claim. § 596. In cases of adjournment a party may have the testimony of any witness taken. CHAPTER IV. TRIAL BY JURY. Article T. Formation of Jury. §§ 600-f504:. IL Conduct of Trial. §§ 607-619. nL Verdict. §§ 624-628. ARTICLE I. FORMATION OP JURY. § 600. Jury, how drawn. § 601. Challenges. Each party entitled to four peremptory challenges. § 602. Challenge of jurors for canse. I 603. Challenges, how tried. § 604. Jury to be sworn. § 607. § 608. § 609. § 610. § 611. § 612. § 613. ARTICLE II. CONDUCT OF TRIAL. Order of proceeding on trial. Charge to the jury. Court must furnish, in writing, upon request, the points of law contained therein. Special instructions. "View by jury of the premises. Admonition when jury permitted to sepa- rate. Jurv may take with them certain papers. Deliberation of jury, how conducted. § 614. May come into court for further instruc- tions. § 615. Proceedings if juror becomes sick. I 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. § 618. Verdict, how declared. Form of. Polling the jury. § 619. Proceedings when verdict is informal. ARTICLE III. VERDICT. § 624. General and special verdicts defined. i 625. When a general or special verdict may be rendered. § 626. Verdict in actions for recovery of money or on establishing counterclaim. § 627. Verdict in actions for the recovery specific personal property. § 628. Entry of verdict. of § 631. § 632. I 633. CHAPTER V. TRIAL BY COURT. When and how trial by jury may be "W&i vcd.. Upon trial by court, decision to be in writing and filed within thirty days. Facts found »nd conclusions of law must be separately stated. Judgment on. § 634. Waiving findings of fact. §635. Findings, how prepared. [Repealed.] § 636. Proceedings after determination of issue of law. § 638. § 639. § 640. CHAPTER VI. REFERENCES AND TRIALS BY REFEREES. Reference ordered upon agreement of par- ties, in what cases. Reference ordered on motion, in what Referees in eminent-domain proceedings involving city, etc. § 641. A party may object. Grounds of objection. § 642. Objections, how disposed of. § 643. Referees to report within twenty days. § 644. Effect of referee's finding. I 645. How excepted to, etc. CONTENTS. xxm CHAPTER VII. PROVISIONS RELATING TO TRIALS IN GENERAL. Article I. Exc-eptiona. §§ 646-653. H. New Trials. §§ 656-663a. § 646. § 647. § 648. § 649. i 650. § 656. § 657. § 658. S 659. ARTICLE I. EXCEPTIONS. "Exreption" defined. When taken. Verdict or order in absence of party, deemed excepted to. § 651. Exception, form of. § 652. Bill of exceptions, when to be presented, etc. § 653. Bill of exceptions. Presentment of bill. Duty of judge to strike out useless matter. Exceptions after judgment. Proceedings if judge refuse to allow bill of exceptions. Settlement of bill of exceptions. ARTICLE II. NEW TRIALS. New trial defined. When a new trial may be granted. Motion for new trial. Papers. Notice of motion. Upon whom served, and what to contain. § 6G0. Motion, when to he heard. §661. Record on appeal. [ Repealed.] § 662. New trial on court's own motion. S 663. Vacation of judgment. § 663a. Notice of intention, service of. [Rpld.] CHAPTER VIII. MANNER OF GIVING AND ENTERING JUDGMENT. § 664. Judgment to be entered in twenty-four hours, etc. § 665. Case may be brought before the court for argument. § 666. When counterclaim established exceeds plaintiff's demand. § 667. In replevin, judgment to be in the alter- native, and with damages. Gold coin or currency judgment. § 668. Judgment-book to be kept by the clerk. § 669. If a party die after verdict, judgment may be entered, but not to be a lien. § 670. Judgment roll, what constitutes. § 671. Judgment lien, when it begins and when it expires. § 672. Docket defined. How kept, and what to contain. § 673. Docket to be open for inspection without charge. § 674. § 675. § 675a § 676. § 677. § 677s § 678. § 678* § 679. § 679i § 680. § 680J Transcript to be filed in any county, and judgment to become a lien there. Satisfaction of a judgment, how made. Satisfaction of mortgage recorded. Form of satisfaction. Undertaking in actions to set aside trans- fer of property. Conditions of undertaking. Filing and serving undertaking. Objections to sureties. Justification of sureties. Approval and disapproval of undertaking. Objection because estimated value in un- dertaking less than market value. New undertaking. Justification of sureties. When undertaking becomes effective. Judgment against sureties. TITLE IX. EXECUTION OF JUDGMENT IN CIVIL ACTIONS. Chapter I. Execution. §§ 6Sl-713Vj. II. Proceedings Supplemental to Execution. §§ 714-721. CHAPTER L EXECUTION. § 681. Within what time execution may issue. § 681a. Stay of execution. § 682. Who may issue the execution, its form, to whom directed, and what it shall re- quire. § 683. When made returnable. § 684. Money judgments and others, how en- forced. § 685. Execution after five years. § 686. When execution may issue against the property of a party after his death. § 687. Execution, how and to whom issued. § 688. What liable to be seized on execution. Property not affected until levy made. § 689. When property claimed by third party. Indemnity. § 690. What exempt from execution. § 691. Writ, how executed. § 692. Notice of sale under execution, how given. § 693. Selling without notice, what penalty at- tached. § 694. Sales, how conducted. Neither the officer conducting it nor his deputy to be a purchaser. Real and personal prop- erty, how sold. Judgment debtor, if present, may direct order of sale, and the officer shall follow his directions. § 695. If purchaser refuses to pay purchase- money, what proceedings. § 696. Officer may refuse Euch purchaser's sub- sequent bid. § 697. These two sections not to make officer liable beyond a certain amount. XXIV CONTENTS. § 698. Personal property not capable of manual delivery, how delivered to purchaser. § 699. Personal property not capable of manual delivery, how sold and delivered. § 700. Sale of real property. What purchaser is substituted to and acquires. § 700a. When sales are absolute. What certifi- cate must show. § 701. Real property so sold, by whom it may be redeemed. § 702. When it may be redeemed, and redemp- tion-money. § 703. When judgment debtor or another re- demptioner may redeem. § 704. In cases of redemption, to whom the pay- ments are to be made. § 705. What a redemptioner must do in order to redeem. § 706. Until the expiration of redemption-time, court may restrain waste on the prop- erty. What considered waste. § 707. Rents and profits. § 708. If purchaser of real property be evicted for irregularities in sale, what he may 709. 710. 710. 710S. 711. 7111. 712. 712i. 713. 713i. recover, and from whom. When judg- ment to be revived. Petition for the purpose, how and by whom made. Party who pays more than his share may compel contribution. Collection of moneys due from judgment debtor. Procedure. Claimant of property may give undertak- ing and release property. Claim of property. Undertaking, amount and conditions of. Undertaking, filing Undertaking, objec- Justification, approval Claim of property, and serving. Claim of property, tions to. Claim of property, and disapproval. Claim of property. Undertaking, esti- mate of value, and now undertaking. Claim of property. Undertaking, justifi- cation of sureties. Claim of property. Undertaking, when becomes effectual. CHAPTER II. PEOCEEDINGS SUPPLEMENTAL TO EXECUTION. § 714. Debtor required to answer concerning his property, when. § 715. Proceedings to compel debtor to appear. In what cases he may be arrested. What bail may be given. § 716. Any debtor of the judgment debtor may pay the latter's creditor. § 717. Examination of debtors of judgment debtor, or of those having property be- longing to him. § 718. Witnesses required to testify. § 719. Judge may order property to be applied on execution. § 720. Proceedings upon claim of another party. § 721. Disobedience of orders, how punished. TITLE X. ACTIONS IN PARTICULAR CASES. Chapter L Actions for Foreclosure of Mortgages. §§726-729. II. Actions for Nuisance, Waste, and Willful Trespass, in Certain Cases, on Real Property. §§ 731-735. III. Actions to Determine Conflicting Claims to Real Property, ami Other Pro- visions Relating to Actions concerning Real Estate. §§ 738-751. IV. Actions for Partition of Real Property. §§ 752-801. V. Actions for Usurpation of an Office or a Franchise. §§802-810. YI. Actions against Steamers, Vessels, and Boats. §§ 813-827. CHAPTER I. ACTIONS FOR FORECLOSURE OF MORTGAGES. § 726. Proceedings in foreclosure suits. § 727. Surplus money to be deposited in court. § 728. Proceedings when debt secured falls due at different times. § 729. Oath and undertaking of commissioner. Report and account of sale. Compensa- tion of commissioner. CHAPTER IL ACTIONS FOR NUISANCE, WASTE, AND WILLFUL TRESPASS, IN CERTAIN CASES, ON REAL PROPERTY. § 731. Nuisance defined. Abatement of. Ac- § 734. tions instituted, by whom. § 732. Waste, actions for. § 735. S 733. Trespass for cutting or carrying away trees, etc., actions for. Measure of damages in certain cases under the last section. Damages in actions for forcible eutry, etc., may be trebled. CONTENTS. XXV CHAPTER III. ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND OTHER PROVISIONS RELATING TO ACTIONS CONCERNING REAL ESTATE. § 738. § 739. § 740. § 741. § 742. § 743. § 744. § 745. § 752. S 753. § 754. § 755. § 756. § 757. § 758. § 759. § 760. § 761. § 762. § 763. § 764. § 765. § 766. § 767. § 768. § 769. § 770. § 771. § 772. § 773. § 774. § 775. § 776. Parties to action to quiet title. Wills in evidence. Right to jury trial. When plaintiff rannot recover co.sts. Where plaintifT'o ri^lit terminates pend- ing suit, what he may recover. When value of improvements can be al- lowed as a set-off. An order may be made to allow a party to survey and measure the land in dis- pute. Order, what to contain, and how served. If unnecessary injury done, the party surveying to be liable therefor. A mortgage must not be deemed a con- veyance, whatever its terms. When court may grant injunction; dur- ing foreclosure ; after sale on execution, before conveyance. § 746. Damages may be recovered for injury to the possession after sale and before de- livery of possession. § 747. Action not to bn prejudiced by aliena- tion pending suit. § 748. Mining claims, actions concerning, to be governed by local rules. § 749. How service may be made in actions re- lating to real property. [Repealed.) § 749. Determination of adverse claims to real property. Unknown defendants. Lis pendens. §750. Summons; service, and proof of service. Publication of summons. § 751. Judgment must not be entered by de- fault. When entered, is conclusive. Remedy is cumulative. CHAPTER IV. ACTIONS FOR PARTITION OF REAL PROPERTY. Who may bring actions for partition. § 777. Interests of all parties must be set forth in the complaint. § 778. Lienholders not of record need not be made parties. § 779. Plaintiff must file notice of lis pendens. § 780. Summons. To whom directed, and must § 781. contain what. Unknown parties may be served by pub- § 782. lication. Answer of defendants. What to contain. § 783. Rights of all parties may be put in issue § 784. and determined in action. Partial partition. § 785. Rights of lienholders. Appointment of referee. § 786. Lienholders must be notified to appear before the referee appointed. § 787. Partition of real property. Referees. In incorporated city. Action of court. § 788. Sale. Deed. In case of death of party. Attorney's fees. § 789. Partition must be according to rights of parties. Sale of undivided interests. § 790. Allotment of shares of each party. Referees must make a report of their proceedings. § 791. Court many confirm, etc., report. Judg- § 792. ment binding on whom. Judgment not to affect tenants for years to the whole property. § 793. Expenses of partition must be appor- tioned among the parties. § 794. A lien on an undivided interest of any party is a charge only on the share as- signed to such party. § 795. Estate for life or years may be set off in a part of the property not sold, when not all sold. § 796. Application of proceeds of sale of en- cumbered property. § 797. Party holding other securities may be re- quired first to e.xhaust them. § 798. Proceeds of sale, disposition of. § 799. When paid into court, cause may be con- tinued for determination of claims of § 800. parties. § 801. Sales by referees may be public or private. Court must direct terms of sale or credit. Referees may take securities for pur- chase-money. Tenant whose estate has been sold shall receive compensation. Court may fix such compensation. Court must protect tenants unknown. Court must ascertain and secure the value of future contingent or vested interests. Terms of sale must be made known at the time. Lots must be sold separately. Who may not be purchasers. Referees must make report of sale to court. Confirmation or rejection of sale. If sale confirmed, order must be made to execute conveyances. Proceeding if a lienholder becomes a pur- chaser. Conveyances must be recorded, and will be a bar against parties. Proceeds of sale belonging to parties un- known must be invested for their benefit. Investment must be made in the name of the clerk of the county. When the interests of the parties are as- certained, securities must be taken in their names. Duties of the clerk making investments. When unequal partition is ordered, com- pensation may be adjudged in certain cases. The share of an infant may be paid to his guardian. The guardian of an insane person may re- ceive the proceeds of such party's in- terest. Guardian may consent to partition with- out action, and execute releases. [Re- pealed.] Costs of partition a lien upon shares of parceners. Court, by consent, may appoint single referee. [Repealed.] Apportionment of expenses of litigation. Abstract of title in action for partition. When cost of, allowed. Abstract, how made and verified. Interest allowed on disbursements made under direction of the court. i 802. § 803. § 804. § 805. CHAPTER V. ACTIONS FOR USURPATION OF AN OFFICE OR A FRANCHISE. Sire facies [scire facias] abolished. Action may be brought against any party usurping, etc., any office or franchise. Name of person entitled to office may be set forth in the complaint. If fees have been received by the usurper, he may be arrested. Judgment may determine the rights of both incumbent and claimant. § 806. When rendered in favor of applicant. § 807. Damages may be recovered by successful applicant. § 808. W^hen several persons claim the same of- fice, their rights may be determined by a single action. § 809. If defendant found guilty, what judg- ment to be rendered against him. § 810. Actions on information. Undertaking. XXVI CONTENTS. CHAPTER VI. ACTIONS AGAINST STEAMERS, VESSELS, AND BOATS. § 813. When vessels, etc., are liable. Their lia- bilities constitute liens. § 822. § 814. Actions, how brought. § 823. §815. Complaint must be verified. § 816. Summons may be served on owners, etc., § 824. of vessels. § 817. Plaintiff may have such vessel, etc., at- tached. § 825. § 818. The clerk must issue the writ of attach- ment. § 819. Such writ must be directed to the sheriff. § 826. § 820. Sheriff must execute such writ without delay. § 827. § 821. The owner, master, etc., may appear and defend such vessel. Discharge of attachment. After appearance, attachment may, on motion, be discharged. "When not discharged, such vessel, etc., may be sold at public auction. Ap- plication of proceeds. Mariners and others may assert their claim for wages, notwithstanding prior attachment. Proof of the claims of mariners and others. Sheriff's notice of sale to contain meas- urement, tonnage, etc. TITLE XL PROCEEDINGS IN JUSTICES' COURTS. Chapter I. Place of Trial of Actions in Justices' Courts. §§832-838. II. Manner of Commencing Actions in Justices' Courts. §§ 839-850. III. Pleadings in Justices' Courts. §§ 851-860. IV. Provisional Remedies in Justices' Courts. §§861-870. Article I. Arrest and Bail. §§861-865. II. Attachment. §§ 866-869. III. Claim and Delivery of Personal Property. § 870. V. Judgment by Default in Justices' Courts. §§871,872. VI. Time of Trial and Postponements in .Justices' Courts. §§ 873-877. Vn. Trials in Justices' Courts. §§ 878-887. Vm. Judgments (Other than by Default) in Justices' Courts. §§ 889-900. IX. Executions from Justices' Courts. §§901-905. X. Contempts in Justices' Courts. §§ 906-910. XI. Dockets of Justices. §§911-918. XII. General Provisions Relating to Justices' Courts. §§ 919-926. CHAPTER I. PLACE OF TRIAL OF ACTIONS IN JUSTICES' COURTS. I 832. Actions, where must be commenced. I 833. Place of trial may be changed in certain cases. § 834. Limitation on the right to change. § 835. To what court transferred. § 836. Proceedings after order changing place of trial. § 837. Effect of an order changing place of trial. [Repealed.] § 838. Transfer of cases to the superior court. § 839. § 840. § 841. § 842. I 843. § 844. § 851. 5 852. § 853. § 854. § 855. CHAPTER 11. MANNER OF COMMENCING ACTIONS IN JUSTICES' COURTS. Actions, how commenced. Summons may issue within a year. Defendant may waive summons. Parties may appear in person or by at- torney. When guardian necessary, how appointed. Summons, how issued, directed, and what to contain. § 845. Time for appearance of defendant. § 846. Alias summons. § 847. Same. § 848. Service of summons outside of county. § 849. Summons, by whom and how served and returned. § 850. Notice of hearing. Form. Service. Service by mail. Docket entries. CHAPTER III. PLEADINGS IN JUSTICES' COURTS. Form of pleadings. Pleadings in justices' courts. Complaint defined. When demurrer to complaint may be put in. Answer, what to contain. § 856. If the defendant omit to set up counter- claim. § 857. When plaintiff may demur to answer. § 858. Proceedings on demurrer. S 859. Amendment of pleadings. S 860. Answer or demurrer to amended plead- ings. CONTENTS. XXVU CHAPTER IV. PROVISIONAL REMEDIES IN JUSTICES' COURTS. Article I. Arrest and Bail. §§ 861-8G5. II. Attachment. §§ 8G6-869. III. Claim and Delivery of Personal Property. § 870. ARTICLE I. ARREST AND BAIL. 8 861. Ordor of arrost. and arrest of defendant. § 862. Affidavit and undertaking for order of arrest. § 863. A defendant arrested must be taken be- fore the justice immediately. S 864. The officer must give notice to the plain- tiff of arrest. § 865. The oflicur must detain the defendant. ARTICLE n. ATTACHMENT, § 866. Issue of writ of attachment. § 807. Attachment, undertaking on. Exceptions to sureties. § 868. Writ of attachment, substance of. Officer may take an nndertakinif Instead of levying. § 869. Certain provisions apply to all attach- ments in justices' courts. ARTICLE III. CLAIM AND DELIVERY OF PERSONAL PROPERTY. S 870. How claim and delivery enforced. S 871. S 873. § 874. § 875. § 876. CHAPTER V. JUDGMENT BY DEFAULT IN JUSTICES' COURTS. Judgment when defendant fails to ap- pear. § 872. Judgment against defendant on demurrer. CHAPTER VI. TIME OF TRIAL AND POSTPONEMENTS IN JUSTICES' COURTS. Time when trial must be commenced. When court may, of its own motion, post- pone trial. Postponement by consent. Postponement upon application of a party. § 877. No continuance for more than ten days to bo granted, unless upon filing of undertaking. CHAPTER VII. TRIALS IN JUSTICES' COURTS. § 878. Issue defined, and the different kinds. § 879. Issue of law, how raised. I 880. Issue of fact, how raised. § 881. Issue of law, how tried. § 882. Issue of fact, how tried. § 883. Jury, how waivad. § 884. Either party failing to appear, trial may proceed at request of other party. § 885. Challenges to jurors. I 886. Manner of pleading a written instrument. I 887. Complaint, when accompanying instru- ment deemed genuine. § 889. § 890. § 891. $ 892. § 893. § 894. CHAPTER VIII. JUDGMENTS (OTHER THAN BY DEFAULT) IN JUSTICES' COURTS. Judgment by confession. Judgment of dismissal entered in certain cases without prejudice. § 895. Judgment upon verdict. § 896. Entry of judgment in thirty days. § 897. Judgment. Form. What must state, § 898. where defendant subject to arrest. Service and entry. S 899. If the sum found due exceeds the juris- S 900. diction of the justice, the excess may be remitted. Offer to compromise before trial. Costs may be included in the judgment. Abstract of judgment. Abstract may be filed and docketed in superior court. Effect of docketing. Judgment no lien unless recorded. XXVlll CONTENTS. CHAPTER IX. EXECUTIONS FROM JUSTICES' COURTS. § 901. Execution may issue at any time within five years. § 901a. Stay of e,\ecution of judgment. § 902. Exe'cution, contents of. § 903. Renewal of execution. § 904. Duty of officer receiving execution. § 905. Proceedings supplementary to execution. § 911. § 912. § 913. § 914. § 915. CHAPTER X. CONTEMPTS IN JUSTICES' COURTS. 906. Contempts a justice may punish for. 907. Proceedings for contempts. 908. Same. § 909. Punishments for contempts. § 910. The conviction must be entered in the docket. CHAPTER XI. DOCKETS OF JUSTICES. Docket, what to contain. Entries therein prima facie evidence of the fact. An index to the docket must be kept. Dockets must be delivered by justice to his successor, or to county clerk. Proceedings when office becomes vacant, and before a successor is appointed. § 916. A justice may issue execution or other process upon the docket of his prede- cessor. § 917. Successor of a justice, who shall be deemed. § 918. Two justices deemed successors, superior court shall designate one. CHAPTER XII. GENERAL PROVISIONS RELATING TO JUSTICES' COURTS. § 919. Justices may issue subpoenas and final process to any part of the county. § 923. § 920. Blanks must be filled in all papers issued § 924. bv a justice, except subpoenas. 8 925. § 921. Justices to receive all moneys collected and pav same to parties. § S26. § 922. In case of disability of justice, another justice may attend on his behalf. Justices may require security for costs. Who entitled to costs. Attorney's fee. What provisions of code applicable to justices' courts. Deposit in lieu of undertaking. TITLE XXL PROCEEDINGS IN CIVIL ACTIONS IN POLICE COURTS. § 929. How commenced. I 930. Summons must isKUe on filing complaint. § 931. Defendant may plead orally or in writ- ing. 932. Trial by jury, when defendant is entitled to. 933. Proceedings to be conducted as in jus- tices' courts. TITLE XIIL APPEALS IN CIVIL ACTIONS. Chapter I. Appeals in General. §§936-959. II. Appeals to Supreme Court. §§ 963-971. III. Appeals to Superior Courts. §§ 974-981. IV. Appeals from Probate Courts. [Repealed.] V. Appeals to County Courts. [Repealed.] CHAPTER I. APPEALS IN GENERAL. § 936. Judgment and orders may be reviewed. I 937. Orders made out of court, without notice, may be reviewed by the jiidee. S 938. Party aggrieved may appeal. Names of parties. § 939. Within what time appeal may be taken. § 940. Appeal, how taken. § 941. Undertaking or deposit on appeal. § 941a. Appeals. Alternative method. 5 941b. Notice of appeal, what to contain. 5 941c. Effect of appeal. ( 942. Undertaking on appeal from a money judgment. § 943. Appeal from a judgment for deliverj- of documents. § 944. Appeal from a judgment directing execu- tion of a conveyance, etc. § 945. Undertaking on appeal concerning real property. § 946. Release of property under levy, on ap- peal. Attachment not continued. § 947. Undertaking may be in one instrument or several. § 948. Justification of sureties on undertakings on api)r-nl, § 949. Undertakings in cases not specified. CONTENTS. XXIX 5 950. Wliat papers to ho used on appeal from thi' .iuil{;infiit. § 951. What papers used on appeals from ordora, e.xecpt orders grantiu;,' new trials. § 952. What papers to he used on appeal from an order Ki'aiitinK a new trial. § 953. Copies and undertakings, how certified. § 953a. Preparation of papers on appeal. No- tice to county clerk. § 953h. Payment of cost of transcript. § 953c. Clerk to transmit the prepared record on appeal. § 954. ■\Vlien an appeal may be dismissed. AVhen not. Effect of dismissal. What may be reviewed on appeal from judfiincnt. § 957. Remedial powers of an appellate court. § 958. On jud^rment on appeal, remittitur must be certified to the clerk of the court below. Provisions of this chapter not applicable to appeals to superior courts. 5 955 § 956 § 959. CHAPTER II. APPEALS TO SUPREME COURT. § 963. Cases in which an appeal may be taken from superior court. §964. Appeals; in what cases appealed from .iustices' courts. § 965. .\ppeals by executors and administrators. § 966. Acts of executors and administrators, where appointment vacated. § 967, § 968. [None so numbered.] § 969. Appeal from probate court, when may be taken. [Repealed.] § 970. E.\ecutors and administrators not re- quired to give undertaking on appeal. [Repealed.] § 971. Acts of acting administrator, etc., not invalidated by reversal of order ap- pointing him. [Repealed.] 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. § 978a. Filing of undertaking. Exception to and .justification of sureti's. § 979. Stay of proceedings on filing undertaking. S 980. Powers of superior court on appeal. § 981. Fees payable on filing appeal. CHAPTER IV. APPEALS FROM PROBATE COURTS. [Repealed] CHAPTER V. APPEALS TO COUNTY COURTS. [Repealed] TITLE XIV. MISCELLANEOUS PROVISIONS. Chapter I. Proceedings against Joint Debtors. §§989-994. II. Offer of Defendant to Comiiromise. § 99/ III. Inspection of Writings. § lOUO. IV. Motions and Orders. §§1003-1007. V. Notices, and Filing and Service of Papers. VI. Costs. §§ 1021-1039. VII. General Provisions. §§1045-1059. §§ 1010-1019. CHAPTER L PROCEEDINGS AGAINST JOINT DEBTORS. § 989. Parties not summoned in action on joint contract may be summoned after judg- ment. S 990. Summons in that case, what to contain, and how served. § 991. Affidavit to accompany summons. S 992. Answer. What it may contain. § 993. What constitute the pleadings in the case. § 994. Issues, how tried. Verdict, what to be. CHAPTER II. OFFER OF DEFENDANT TO COMPROMISE. § 997. Proceedings on offer of the defendant to compromise after suit brought. •yy^ CONTENTS. CHAPTER III. INSPECTION OF WRITINGS. { 1000. A party may demand inspection and copy of a book, paper, etc. CHAPTER IV. MOTIONS AND ORDERS. S 1003. Order and motion defined. I 1004. Motions and oriiers. where made. J 1005. Notice of motion. When must be given. S 1006. Transfer of motions and orders to show cause. § 1007. Order for payment of money, how en- forced. CHAPTER V. NOTICES, AND FILING AND SERVICE OF PAPERS. 5 1010. Notices and papers, how served. 5 1011. When and how served. 5 1012. Service by mail. when. § 1013. Service by mail_, how. I 1014. Appearance. Notices after appearance. § 1015. Service on non-residents. i 1016. Preceding provisions not to apply to proceeding to bring party into con- tempt. § 1017. Service by telegraph. § 1018. [No section with this number.] § 1019. Service of pleadings in action for di- vorce for adultery. CHAPTER VI. COSTS. i 1021. Compensation of attorneys. Costs to § 1030. parties. 5 1022. When allowed of course to plaintiff. § 1031. S 1023. Several actions brought on a single cause of action can carry costs in but § 1032. one. § 1033. 5 1024. Defendant's costs must be allowed of § 1034. course, in certain cases. { 1025. Costs, when in the discretion of the § 1035. court. { 1026. When the several defendants are not § 1036. united in interest, costs may be sev- ered. 5 1027. Costs on appeal §1037. 5 1028. Referee's fees. i 1029. Continuance, costs may be imposed as § 1038. condition of. § 1039. Costs when a tender is made before suit brought. Costs in action by or against an admin- istrator, etc. Costs in a review other than by appeal. riling of and affidavit to bill of costs. Costs on appeal, how claimed and re- covered. Interest and costs must be included by the clerk in the judgment. When plaintiff is a non-resident or for- eign corporation, defendant may re- quire security for costs. If such security be not given, the action may be dismissed. Costs when state is a party. Costs when county is a party. CHAPTER VII. GENERAL PROVISIONS. 5 1045. Lost papers, how supplied. { 1046. Papers without the title of the action, or with defective title, may be valid. i 1046a. Filing of papers nunc pro tunc. S 1047. Successive actions on the same con- tract, etc. i 1048. Consolidation of several actions into one. { 1049. Actions, when deemed pending. I 1050. Action to determine adverse claims, and by sureties. I 1051. Testimony, when to be taken by the clerk. i 1052. The clerk must keep a register of ac- tions. ] 1053. Two of three referees, etc., may do any act. § 1054. Time within which an act is to be done may be extended. § 1055. Action asainst officer for official acts. § 1056. Corporations may become sureties on undertakings and bonds. § 1057. Undertakings mentioned in this code, requisites of. § 1057a. Justification by corporate security on bonds. Procedure. County clerk to is- sue certificate. Pee. § 1058. People of state not required to give bonds when state is a party. S 1059. Surety on appeal substituted to rights of judgment creditor. THE CODE OF CIVIL PROCEDUEE OF THK STATE OF CALIFORNIA. IN POUR PARTS. Title of Act. § 1. Preliminary Provisions. §§ 2-32. Part I. Courts of Justice. §§ 33-304. II. Civil Actions. §§307-1059. III. Special Proceedings of a Civil Nature. IV. Evidence. §§ 1823-2104. 1 Fair.— -1 (1) §§ 1063-1822f. THE CODE OF CIVIL PROCEDURE STATE OF CALIFORNIA. AN ACT TO ESTABLISH A CODE OF CIVIL PROCEDURE. [Approved March 11, 1872.] The People of tlie State of California, represented in Senute and Assembly, do enact as follows: TITLE OF ACT. § 1. Title and division of this volume. § 1. Title and division of this volume. This act shall be knoAvn as The Code of Civil Procedure of California, and is divided into four parts, as fol- lows : Part I. Of Courts of Justice. II. Of Civil Actions. III. Of Special Proceedings of a Civil Nature. IV. Of Evidence. This act, how cited. See post, § 19. Construction of the codes and of their various sections. See Pol. Code, §§ 4478 et seq. Legislation § 1. Enacted March 11, 1872. Constitutionality of statute embracing more than one subject. See note Gl Am. Dee. 337. Statutes embracing subjects not embraced in title. See note 69 Am. Dec. 648. When title embraces more than one subject, and what it may Include. See note 79 Am. St. Rep. 456. Construction of constitutional provisions rela- tive to titles of statutes. See note 1 Ann. Cas. 584. Single statute embodying title of statute or compilation of laws as affected by prohibition against plurality of subjects. See note 55 L. R. A. 840. PRELIMINAEY PROVISIONS. § 2. § 3. § 4. § 5. § 6. § 7. § 8. § 9. § 10. § 11. § 12. § 13. § 14. § 15. § 16. 5 17. When this codes takes effect. § 18. Not retroactive. Rule of construction of this code. § 19. Provisions similar to existing laws, how § 20. construed. § 21. Tenure of offices preserved. § 22. Construction of repeal as to certain offices. § 23. Actions, etc., not affected by this code. § 24. Limitations shall continue to run. § 25. Holidays. Same. " § 26. Computation of time. § 27. Certain acts not to be done on holidays. § 28. '•Seal" defined. § 29. .Joint authority. § 30. Words and phrases. §31. Certain terms used in this code defined. § 32. Statutes, etc., inconsistent with code re- pealed. This act, how cited, enumerated, etc. Judicial remedies defined. Division of judicial remedies. Action defined. Special proceeding defined. Division of actions. Civil actions arise out of obligations or injuries. Obligation defined. Division of injuries. Injuries to property. Injuries to the person. Civil action, by whom prosecuted. Criminal actions. Civil and criminal remedies not merged. § 2. When this code takes effect. This code takes effect at twelve o 'clock noon, on the first day of January-, eighteen hundred and seventy-three. (3) §§3,4 PRELIMINARY PROVISIONS. 4 Effect of codes generally. Ses Pol. Code, §§ 4478 et seq. Similar provisions. See Civ. Code, § 2 ; Pol. Code, § 2; Pen. Code, § 2. Legislation § 2. Enacted March 11, 1873. Laws passed at the same session at which the codes were adopted prevail over the codes (Babcock v. Goodrich, 47 Cal. 4S8; Ex parte Newton, 53 Cal. 571); but § 3891 of the Political Code declares that provis- ions concerning revenue are to be con- sidered as if passed and approved on the last day of the session, and all acts passed during the session are repealed, except acts amendatory of or carrying into effect the codes. Mitchell v. Crosby, 46 Cal. 97; Kosasco v. Tuolumne County, 143 Cal. 482; 77 Pac. 148. § 3. Not retroactive. No part of it is retroactive, unless expressly so declared. Moore, 106 Cal. 673; 39 Pac. 1071; Cook v. Cockins, 117 Cal. 140; 48 Pac. 1025. Amendments are adjusted to the original enactments, so that, in conjunction, they shall form a perfect code; and the portion of the amended section left unchanged must be considered as having been the law continuously, with the new or changed portions as new enactments that shall not be retroactive. Central Pacific E. R. Co. v. Shackelford, 63 Cal. 261. An amendment merely shortening the time within which an act may be done, and affecting only the remedy, leaving an adequate and avail- able remedy, is in no sense retroactive (Kerckhoft'-Cuzner Mill etc. Co. v. 01m- stead, 85 Cal. 80; 24 Pac. 648); but an amendment cannot change the rights or obligations of the parties, nor extend the time for the commencement of an action. Allen v. Allen, 95 Cal. 184; 16 L. R. A. 646; 30 Pac. 213. Registry laws will not be given a retroactive effect; and an amendment authorizing the recordation will not operate as a constructive notice of an instrument, where it was not valid, and did not have that effect, when exe- cuted. Bank of Ukiah v. Moore, 106 Cal. 673; 39 Pac. 1071. A statute prescribing not merely a rule of evidence, but a rule of property, cannot be given a retroactive effect. Cook v. Cockius, 117 Cal. 140; 48 Pac. 1025. Construction of Practice Act. The Prac- tice Act was given a like construction. People V. Hays, 4 Cal. 127; Scale v. Mitch- ell, 5 Cal. 402; Stockton etc. R. R. Co. v. Common Council, 41 Cal. 147. Legislative expression. What is an ex- press declaration of an intention to give a retroactive operation may rest on con- struction. Dunne v. Mastick, 50 Cal. 244; Tulley V. Tranor, 53 Cal. 274; Cummings v. Howard, 63 Cal. 503. Ex post facto law. See note to Hart v. State, 88 Am. Dec. 752. Effect on pending proceedings and vested rights. See post, § 8. Effect of code on existing statutes. See post, § 18. Similar provisions. See Pen. Code, § 3 ; Pol. Code, § 3; Civ. Code, § 3. Legislation § 3. Enacted March 11, 1873. Retrospective law, what is. Justice Story, in Society v. Wheeler, 2 Gall. (U. S.) 139, Fed. Cas. No. 13156, declares, "Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospec- tive." See also note to American Mercan- tile Exchange v. Blunt, 120 Am. St. Rep. 468. Remedial statutes should be given a ret- rospective effect, where a repealing or amending statute has no saving clause, and such a construction is necessary to preserve the rights of the parties in pend- ing actions. Bensley v. Ellis, 39 Cal. 309. Changing procedure. Where the change affects merely the remedy, and the method of enforcing the right, not the right itself, it is within the control of the legislature. Oullahan v. Sweeney, 79 Cal. 537; 12 Am. St. Rep. 172; 21 Pac. 960. When a legal liability exists, a remedy may be given for such liability, where none existed before. Chapman v. State, 104 Cal. 690; 43 Am. St. Rep. 158; 38 Pac. 457. This principle is equally applicable to criminal cases: an offender may be tried by a procedure which did not exist when the offense was committed, provided, the act was, at the time of its commission, punishable lay law (Ex parte Gutierrez, 45 Cal. 429; People v. Mortimer, 46 Cal. 114; People V. Soto, 49 Cal. 67); and this change may be made to apply to pending actions, where the time within which an act may be done is extended (Bensley v. Ellis, 39 Cal. 309), or shortened. Kerck- hoff-Cuzner Mill etc. Co. v. Olmstead, 85 Cal. 80; 24 Pac. 648. Construction of amendments to codes. This provision also aU'ects amendments to the original code. Hibernia Sav. & L. Soc. V. Hayes, 56 Cal. 297; Sharp v. Blank- enship, 59 Cal. 288; Bank of Ukiah v. CODE COMMISSIONERS' NOTE. It is a rule of construction founded on the principles of gea- eral jurisprudence that a statute is not to have a retroactive effect beyond the time of its enact- ment. See the very elaborate and learned opinion of Justice Wells, an4 also the dissenting opinion of Justice Heydenfeldt, in People v. Hays, 4 Cal. 127, and numerous cases there cited. See Civ. Code, § 3, and note. § 4. Rule of construction of this code. The rule of the common lav/, that statutes in derogation thereof are to be strictly construed, has no applica- RULE OF CONSTRUCTION OF THIS CODE. §4 tion to this code. The code estal)lishe.s the law of tliis state respectinf]; the subjects to which it rehites, and its provisions and all proceedin<,^s under it are to be liberally construed, with a view to effect its objects and to pro- mote justice. 736), in the same manner as if they were new and original pieces of legislation. Donlon v. Jewett, 88 Cal. .530; 26 Pac. 370. The repeal of an act effects the repeal of an act amendatory of the act repealed. Hemstreet v. Wassum, 49 Cal. 273. Under tlie code, statutes remedial in their nature are to be liberally construed in favor of the remedy (Estate of McManus, 87 Cal. 292; 22 Am. St. Rep. 250; 10 L. R. A. 567; 25 Pac. 413; Buck v. Eureka, 97 Cal. 135; 31 Pac. 845; Br-i'ckett v. Banegas, 99 Cal. 623; 34 Pac. 344; Continental Building etc. Ass'n V. Hutton, 144 Cal. 609; 78 Pac. 21; Union Lumber Co. v. Simon, 150 Cal. 751;' 89 Pac. 1077, 1081; Malone v. Big Flat Gravel Min. Co., 93 Cal. 384; 28 Pac. 1063; Stonesifer v. Kilburn, 94 Cal. 33; 29 Pac. 332; Melde v. Reynolds, 129 Cal. 308; 61 Pac. 932), even where it inflicts a penalty. Burns v. Superior Court, 140 Cal. 1; 73 Pac. 597. Courts should always look to the substance of the thing, rather than to its name (Ex parte Spencer, 83 Cal. 460; 17 Am. St. Rep. 266; 23 Pac. 395); and each provision should be referred to the object for which it was intended or to which it relates. Holbrook v. McCarthy, 61 Cal. 216; Ex parte Reis, 64 Cal. 233; 30 Pac. 806; Auzerais v. Naglee, 74 Cal. 60; 15 Pac. 371. The statute should be con- strued with the plain legislative intent. Blythe v. Ayres, 96 Cal. 532; 19 L. R. A. 40; 31 Pac. 915. Rules of procedure. Except in matters which are jurisdictional, rules of proce- dure should be liberally construed (Smith V. Whittier, 95 Cal. 279; 30 Pac. 529; Buck v. Eureka, 97 Cal. 135; 31 Pac. 845); and not given a narrow or technical con- struction (Howell V. Budd, 91 Cal. 342; 27 Pac. 747), but should be made to servo their true purpose, of expediting the dis- position of causes upon their merits, rather than of obstructing the action of the court. Flagg v. Puterbaugh, 98 Cal. 134; 32 Pac. 863; Warner v. F. Thomas etc. Works, 105 Cal. 409; 38 Pac. 960. A lib- eral construction should be given to § 1238, post (San Joaquin etc. Irrigation Co. v. Stevinson, 164 Cal. 221; 128 Pac. 924), and also to § 473, post. Palmer & Rey v. Barclay, 92 Cal. 199; 28 Pac. 226. The rule that statutes in derogation of the common law are to be strictly construed has no application, to the taking of depo- sitions. Bollinger v. Bollinger, 153 Cal. 190; 94 Pac. 770. It will be assumed, where necessary to give effect to a pro- ceeding, that the party in interest will act in a lawful ratlier than in an unlawful manner. Clark v. Palmer, 90 Cal. 504; 27 Pac. 375. Construction of codes with relation to each other, and reconciling conflicts between titles, chapters, and articles. Sec Pol. Code, §§ 44H0 et sell. Rules for construction of statutes. See post, §§ lt<.'>S, 1S,")9, ISlUi. Similar provisions. See Pen. Code, §4; Pol. Code, § 4; Civ. Code, § 4. Legislation 8 4. Enacted March 11, 1872. Constitutional provisions part of law. The law of the state is contained in the constitution as w'ell as in the codes. Pasa- dena v. Superior Court, 157 Cal. 781; 109 Pac. 620. Strict construction. The common-law rule, that statutes in derogation thereof should have a strict construction, was adopted in this state when the common- law rule was made the rule of decision in 1850, and prevailed until the adoption of the codes (Hotaling v. Cronise, 2 Cal. 63; People v. Buster, II Cal. 215; Turner V. Tuolumne County Water Co., 25 Cal. 397; 1 Morrison's Min. Rep. 107; Pina v. Peck, 31 Cal. 359), when this rule of con- struction was changed (Blythe v. Ayres, 96 Cal. 532; 19 L. R. A. 40; 31 Pac. 915; Robinson v. Southern Pacific Co., 105 Cal. 526; 28 L. R. A. 773; 38 Pac: 94, 722), and the law of the subject to which it relates established (Canavan v. Gray, 64 Cal. 7; 27 Pac. 788; Smith v. McDermott, 93 Cal. 421; 29 Pac. 34; Miller v. Carr, 116 Cal. 378; 58 Am. St. Rep. 180; 48 Pac. 324). Liberal construction. This provision, re- quiring the code to be given a liberal con- struction, is equivalent to a command to the courts (Plummer v. Brown, 64 Cal. 429; 1 Pac. 703; Bewick v. Muir, 83 Cal. 368; 23 Pac. 389); but, while it applies to the codes, it has no application to the stat- utes of the state, as such statutes, when in derogation of the common law, are to be strictlv constiiied (Pina v. Peck, 31 Cal. 359; Estate of Jessup, 81 Cal. 408; 6 L. R. A. 594; 21 Pac. 976; 22 Pac. 742, 1028), where such construction does not favor the imposition of a penalty or for- feiture. Snell V. Bradbury, 139 Cal. 379; 73 Pac. 150. Provisions affirmative of the common law are to be interpreted as are the rules of the common law (Baker v. Baker, 13 Cal. 95; Emeric v. Alvarado, 90 Cal. 444; 27 Pac. 356); but those in dero- gation of the common law, or out of its course, are to be construed strictly (Hotal- ing V. Cronise, 2 Cal. 60); and re-en- acted statutes are to be construed in ac- cordance with the principles in force at the time of the enactment (Blvthe v. Ayres, 96 Cal. 532; 19 L. R. A. 40;'31 Pac. 915; Dixon v. Pluns, 98 Cal. 384; 35 Am. St. Rep. 180; 20 L. R. A. 698; 33 Pac. 268; TSstate of Healy, 122 Cal. 162; 54 Pac. §4 PRELIMINARY PROVISIONS. Construction of codes with relation to each other. '-With relation to each other. the provisions of the four codes must be construed (except as in the next two sec- tions provided) as though all such codes had been passed at the same moment of time, and were parts of the same statute." Pol. Code, § 44S0. While the code provis- ions are controlling where they assume to cover a given subject (McBride v. Fal- lon, 65 Cal. 301; 4 Pac. 17), yet they do not necessarily embody the whole law of that subject, as there may be other statu- tory provisions not embraced in the code. Estate of Apple, 66 Cal. 432; 6 Pac. 7. "Where the provisions of the several codes are not contradictor}', they should be read together, when dealing with the same sub- ject-matter (St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876; People v. Apple- garth, 64 Cal. 229; 30 Pac. 805), and con- strued as though passed in view of each other (Eobinson v. Southern Pacific Co., 105 Cal. 526; 2S L. R. A. 773; 38 Pac. 94, 722), and as parts of the same statute. Estate of Weed, 120 Cal. 634; 53 Pac. 30. Thus, where a term is defined in one code, its use in another code must be deemed to have been with reference to such defi- nition. Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341; Keyes v. Cyrus, 100 Cal. 322; 38 Am. St. Eep. 296; 34 Pac. 722. Where one code authorizes or requires a thing to be done, and another provides the means (Page v. Superior Court, 122 Cal. 209; 54 Pac. 730), or limits and defines a power, and enumerates the circumstances under which it may be exercised, they are to be construed as one statute (People v. Fellows, 122 Cal. 233; 54 Pac. 830), and the general provisions of one are modified by the specific provisions of another (People V. Xorris, 144 Cal. 422; 77 Pac. 998); and the provisions of the various codes bear- ing upon the same subject-matter must be construed in pari materia. Estate of Miner, 143 Cal. 194; 76 Pac. 968. Such a construction must therefore be given to the provisions of each, that all may, if possible, have effect (Gonzales v. Wasson, 51 Cal. 295) ; and every word of each have its proper meaning. Ex parte Reis, 64 Cal. 233; 30 Pac. 806. It is only where there is a conflict between the provisions of the different codes that it is necessary to de- termine which shall prevail (Clarke v. Mead, 102 Cal. 516; 36 Pac. 862), but con- flicts should be reconciled, if possible (Ex parte Reis, 64 Cal. 233; 30 Pac. 806). and harmonized and construed together. Weber v. McCleverty, 149 Cal. 316; 86 Pac. 706. Rules of construction in case of conflict. The following rules are laid down for the construction of the several codes, and the different titles, chapters, and sections thereof, whrre thoro is a conflict. Conflict between titles. "If the provis- ions of any title conflict with or contra- vene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject matter of such title." Pol. Code, § 4481. This rule applies only where there is a conflict; it implies that where there is no conflict a provision will be valid, although, in the sense of that rule, it is not in regard to a question arising out of the subject-matter of the title. Ma- lone V, Bosch, 104 Cal. 680; 38 Pac. 516. It is a cardinal rule of statutory con- struction, that specific provisions upon a particular subject control the general pro- visions for the class to which that subject belongs (Loudon etc. Bank v. Parrott, 125 Cal. 472; 73 Am. St. E«p. 64; 58 Pac. 164) ; but where it is evident from the language used, and from the incongruity of the nature of the different provisions, that they are to be understood as refer- ring respectively to distinct classes, the rule requiring the statutes to be construed together does not apply. People v. Xorris, 144 Cal. 422; 77 Pac. 998. The subject- matter of the title should be ascertained, not so much from its head-lines as from its contents. People v. Freese, 76 Cal. 633; 18 Pac. 812. The particular provision of one title in relation to the subject-matter will prevail over the general provision of another title (Fessenden v. Summers, 62 Cal. 484), especially when the general pro- vision is silept on the point (State v. Campbell, 3 Cal. App. 604; 86 Pac. 840); but if there is any provision of law, in any other title, specially governing the subject-matter, it must prevail (Woods v. Varnum, 83 Cal. 46; 23 Pac. 137); for the provisions specially adapted to the sub- ject will always govern (People v. Central Pacific R. R. Co., 83 Cal. 393; 23 Pac. 303) ; but all the provisions of the code bearing upon a single subject-matter are to be construed together harmoniously if possible. Estate of Clarke, 148 Cal. 108; 113 Am. St. Rep. 197; 7 Ann. Cas. 306; 1 L. R. A. (N. S.) 996; 82 Pac. 760. Conflict between chapters. "If the pro- visions of any chapter conflict with or contravene the provisions of another chap- ter of the same title, the provisions of each chapter must prevail as to all mat- ters and questions arising out of the sub- ject-matter of such chapter." Pol. Code, § 4482. Where two chapters both relate to the same general subject-matter, but one relates specifically to the particular subject-matter under consideration, the latter must govern. Ham v. Santa Rosa Bank, 62 Cal. 125; 45 Am. Eep. 654. Re- sort must always be had to the subject- matter, to determine whether it falls more naturally in one chapter than in another (Southern Pacific R. R. Co. v. Painter, 113 Cal. 247; 45 Pac. 320); and the head- ings of the chapters and titles may be examined for this purpose. Keyes v. Cy- rus, 100 Cal. 322; 38 Am. St. Rep. 296; 34 Pac. 722. RULE OF CONSTRUCilON OF THIS CODE. §4 Conflict 'between articles. "If the pro- visimis of anj- nrtielo coiillict with or eon- travciio the provisions of auothcr article of tlie same chapter, the provisions of each article must prevail as to all mat- ters and questions arising out of the sub- ject-matter of such article." Pol. Code, § -1483. In case of conflict, the provision of the article must prevail, under which the subject-matter more properly comes (Odd Follows' Sav. Bank v. Bauton, 46 Cal. CO-1; People v. Frocse, S3 Cal. 453; 23 Pac. 37S), and which deals specifically therewith. Estate of Bergin, 100 Cal. 370; 34 Pac. 867. Conflicting sections of the same chapter or article. "If conflicting provisions are found in different sections of the same chapter or article, the provisions of the sections last in numerical order must pre- vail, unless such construction is inconsis- tent with the meaning of such chapter or article." Pol. Code, § 4484. This rule does not apply "where the sections were passed at different times, as it is an old and well- settled rule, that when two laws upon the same subject-matter, passed at dift'erent times, are inconsistent with each other, the one last passed must prevail; so it has always been the rule, that, when different provisions of a statute, all passed at the same time, could not be reconciled, the one last in point of position must prevail; this was upon the theory that effect should always be given to the later rather than to an earlier expression of the legislative will; the presumption being that the latter part of the statute was last considered: there is no indication in § 4484 of the Political Code of any intent to change this well-established rule. Peo- ple V. Dobbins, 73 Cal. 257; 14 Pac. 860. In the construction of statutes, all parts are to be considered together, keeping in view the subject-matter in order to ascer- tain the legislative intent: one clause may enlarge or limit other provisions; but no construction should be given which will lead to absurdities, if it can be reason- ably avoided. San Diego v. Granniss, 77 Cal. 511; 19 Pac. 875. The sections of a statute in pari materia must be read to- gether and effect given to each, and so construed as not to render nugatory the restrictions of any section. Gleason v. Spray, 81 Cal. 217; 15 Am. St. Kep. 47; 22 Pac. 551; People v. Broadway Wharf Co., 31- Cal. 33; Nicolson Pavement Co. v. Painter. 35 Cal. 699. The different sec- tions of a chapter must be construed so as to reconcile apparent conflicts, if possible. Emeric v. Alvarado, 64 Cal. 529; 2 Pac. 418. They must be read together, and that interpretation should be placed upon the language which will, if possible, give effect to each section, and make it com- patible with common sense and the plain dictates of justice. People v. Waterman, 31 Cal. 412; Cullerton v. Mead, 22 Cal. 95; People V. Soeley, 137 Cal. 13; 69 Pac. 693. Effect must be given, us far as possible, to nil the sections upon the same subject, jiroviding a comi)letc scheme covering the subject-matter. People v. Golden Gate Lodge, 128 Cal. 257; (in Pac. 865. Effect to be given headings. While the headings of chapters may be resorted to, to determine the correct interpretation of the sections thereof, yet they are not conclusive of the question of the power of the legislature to pass the statute. Ex jjarte Koser, 60 Cal. 177. Each article of the code is preceded by head-notes, num- bered to correspond with the sections fol- lowing, and purporting to give, in brief, the subject of each of such sections; they are parts of the statute, limiting and de- fining the sections to which they refer: to refuse to give effect to them according to their import, would be to make the law, not to administer it. Sharon v. Sharon, 75 Cal. 1; 16 Pac. 345. These head-notes are entitled to more consideration, in explain- ing the intention of the different sections, where the language is doubtful, than the title of the entire act (Barnes v. Jones, 51 Cal. 303), and may be examined for the purpose of determining the particular in- tent of the legislature with regard to the chapter in which the section to be con- strued is placed. Keyes v. Cyrus, 100 Cal. 322; 38 Am. St. Eep. 296; 34 Pac. 722. In construing doubtful statutes, the title of an act is sometimes resorted to, in order to ascertain the legislative intent (Peo- ple V. Abbott, 16 Cal. 358; State v. Conk- ling, 19 Cal. 501; People v. Board of Supervisors, 36 Cal. 595), but it is never allowed to enlarge or control the body of the statute. Hagar v. Board of Supervi- sors, 47 Cal. 222. CODE COMMISSIONERS' NOTE. The rules of statutory construction present one of the widest fields of learning known to the lawyer. While it is a general principle that the will of the legislature, as expressed in a statute, is to be carried into full effect, and that, for the pur- pose of ascertaining it, every source of informa- tion is to be resorted to, such as its title, its preamble, its history, and attendant circum- stances, and above all, the evil aimed at and the remedy intended to be applied, it is equally well settled that a mure stringent rule was applicable to a certain class of statutes, namely: to those of a penal nature, and those which are, as it was termed, in derogation of the common law. Within this latter category liave been classed statutes prescribing the practice of the courts, iu respect to which it was remarked by the supreme court of New York (commenting upon prorisions in the Practice Code of that state, which is in most respects similar to this code), that "the rules and practice of the court, being established by the court, may be made to j'ield to circum- stances to promote the ends of justice. Not so as to a statute; it is unbending, requiring im- plicit obedience as well from the court as from its suitors." Jackson v. Wiseburn, 5 Wend. 137. Without stopping to inquire how far this prin- ciple is applicable to statutory provisions pre- Ecril)ing, for example, the time within which a particular act must be done (which was the case in the instance referred to), it certainly should not apply in all its severity to a system of regu- lation having in view as its sole object the furtherance of justice and a disregard of tech- §§5-7 PRELIMINARY PROVISIONS. rigid and unbending statute, as construed by some, a rule of procedure susceptible of easy adaptation to the purposes of justice which it alone has in view. See tlie opinion of Justice Cope. Jones v. Steamship Cortes, 17 Cal. 487; 79 Am. Dec. 142. See also Lucas v. Payne, 7 Cal. 92; Ward v. Severance, 7 Cal. 126; Chamberlain V. Bell, 7 Cal. 292; 68 Am. Dec. 260. See Civ. Code, § 4, and note. Bical strictness. This is the great principle run- ning through all the provisions of this code. The chief design and the merit of the code, if it has any, is its attempt to make the attainment of justice the paramount object, and the use of forms mere au.xiliaries, which, when they come in conflict with the ends of justice, are to be relaxed. This section was intended to obviate much of the difficulty under which courts have labored, and to render the code, instead of a § 5. Provisions similar to existing laws, how construed. 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. framed with a view to a complete system of law, with the intent to disturb the ex- isting state of things as little as possible (People V. Bissell, 49 Cal. 407), and so far as they are substantially the same as exist- ing statutes or common law, they must be construed as continuations thereof. Churchill v. Pacific Improvement Co., 96 Cal. 490; 31 Pac. 560. If the statute of limitations had commenced to run before the codes took effect, it continued to run, notwithstanding the passage of the codes, and was not lengthened by them. Benja- min V. Eldridge, 50 Cal. 612. Construction. The word "construed" does not mean, simply, "to interpret," "to explain," "to translate," or "to show the meaning of," but is intended to mean "regarded" or "considered." Churchill v. Pacific Improvement Co., 96 Cal. 490; 31 Pac. 560. This section is, in part, a rule of construction, and its meaning is, that words used in a former statute on the same subject have the same meaning in this code as in the former statute. Ex parte Eeis, 64 Cal. 233-241; 30 Pac. 806. Effect of codes on existing statutes. See post, §18. Similar provisions. See Civ. Code, § 5 ; Pen. Code, § 5; Pol. Code, § 5. Legislation § 5. 1. Enacted March 11, 1872. 2. Amendment by Stats. 1901, p. 117, and held unconstitutional, in Lewis v. Dunne, 134 Cal. 291; Mr. Justice McFarland saying, "The said act ... is unconstitutional, and void for all purposes, and is inoperative to change or in any way affect the law of the state as it stood immediately before the approval of said act. . . . The act covers one hundred and fifty pages of the published statutes of 1901; it amends over four hundred sections: it repeals nearly one hundred sections; it changes the numbers of other sections; it adds a great many new sec- tions; and it contains this clause, 'Certain title and chapter headings . . . are hereby inserted, changed, and amended,' and then follow several pages of insertions, changes, and amendments of such headings. . . . We are forced to the con- clusion that this act is a revision, and void for want of re-enactment and publication at' large of the revised law." Thus the attempted repeals or attempted amendments of the Code of Civil Procedure as embodied in the act of the legis- lature of 1901 were declared unconstitutional and void. This act was the result of an act approved March 25, 1895 (Stats. 1895, p. 345), whereby the legislature created and established "a commission for revising, systematizing, and reforming the laws of this state," and provided that "said commission, to be known as 'The Commissioners for the Revision and Reform of the Law,' should be appointed by the governor." This commission was duly appointed, and there- after filed with the secretary of state a report recommending, among other things, a revision of the Code of Civil Procedure, and the legislature (Stats. 1901, p. 117) embodied their recom- mendations in the act declared "unconstitu- tional, and void for all purposes." New enactments. The codes were Constitutionality of code amendments and re- visions. See note 36 Am. St. Rep. 267. CODE COMMISSIONERS' NOTE. The Po- litical Code contains a general provision that ihe repeal of existing statutes shall not revive any law heretofore repealed or suspended, nor any office heretofore abolished, and therefore such a pro- vision has not been incorporated herein. See People V. Craycroft, 2 Cal. 243; 56 Am. Dec. 331. § 6. Tenure of offices preserved. 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. Similar provision. See Pol. Code, § 6. Legislation 8 6. Enacted March 11, 1873. § 7. Construction of repeal as to certain offices. When any office is abol- ished by the repeal of any act, and such act is not in substance re-enacted or continued in either of the codes, such office ceases at the time the codes take effect. Eepeals by implication. See post, § 18. Legislation S 7. Enacted March 11, 1873. Abolition of office. Where the act cre- ating an office is repealed, but the office is continued by the Political Code, the in- cumbent is authorized to occupy the office, until his successor qualifies. People v. Bis- sell, 49 Cal. 407. In the absence of a constitutional inhibition, the legislature has power to alter or abridge a term of office created by it (People v. Haskell, 5 Cal. 357; People v. Squires, 14 Cal. 12; ACTIONS NOT AFFECTED — LIMITATIONS CONTINUE TO RUN. §§B,9 Cohen \. Wright, 22 Cal. 293; In re Bul- ger, 45 Cal. 553; Spring Valley Water Works V. Board of Supervisors, (51 Cal. 3; Pennie v. Keis, 80 Cal. 2GC; 22 Pac. 17G; Peojile V. Banvard, 27 Cal. 470), and may extend the term of an incumbent, pro- vided the extension does not exceoi! the limitations fixed by the constitution. Christy v. Board of Supervisors, 39 Cal. 3; and see Miller v. Kister, 68 Cal. 142; 8 J'ac. 813. The legislature may also make the enjoyment of an elective office depend- ent upon conditions (Brodie v. Campbell, 17 Cal. 11), and may take away from the office the duties and emoluments thereof, before the expiration of the term. People V. Squires, 14 Cal. 12. An incumbent has no proprietary interest in an office created by the legislature: it has full control over § 8. Actions, etc., not affected by commenced before this code takes eft'ec its provisions, but the proceedings ther of this code as far as applicable. Similar provisions. See Civ. Code, § 6 ; Pol. Code, § 8. See also repealing clause at end of this code. Legislation § 8. 1. Enacted March 11, 1872. 3. Amendment by Stats. 1901, p. 117; un- constitutional. See note ante, § 5. Pending actions. Actions commenced before the code went into effect were gov- erned by the law in force at the time of commencement (Caulfield v. Doe, 45 Cal. 221; Hancock v. Thorn, 46 Cal. 643; Strue- ven v. His Creditors, 62 Cal. 45) ; the clear implication from this section being, that actions not commenced and rights not vested prior to the adoption of the codes w^ere to be controlled by the codes; the codes therefore applying only to new actions, and to causes of action which, un- der the existing statutes, were not barred by limitation. Allen v. Allen, 95 Cal. 184; 16 L. R. A. 646; 30 Pac. 213. A proceed- ing for a new trial after the codes went into effect, being a new proceeding, is gov- erned by the code provisions (Kelly v. Larkin, 47 Cal. 58; and see also Hodgilon V. Griffin, 56 Cal. 610) ; but proceedings for a new trial instituted before the codes went into effect were governed by the Practice Act. Macy v. Davila, 48 Cal. 646. § 9. Limitations shall continue to run. When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this code goes into effect, and the same or any limitation is prescribed in this code, the time which has already run shall be deemed part of the time prescribed as such limitation by this code. Existing actions not affected. See post, § 362. Limitation of actions. See post, §§ 312 et seq. Similar provision. See Pol. Code, § 9. Legislation § 9. 1. Enacted March 11, 1873. 2. Amended by Code Amdts. 1873-74, p. 279; (1) words "goes into effect" substituted such office, unless restricted by the consti- tution (Miller v. Kister, 68 Cal. 142; 8 Pac. 813; Pennie v. Eeis, 80 Cal. 266; 22 Pac. 176) ; nor has an incumbent any vested right in tlie office, which would im- pair the right of the legislature to in- crease or diminish the salary, or impose Dew duties, or wholly abolish the office (Cohen v. Wright, 22 Cal. 293); nor has he any contractual relation with tlie state, or obligation, which may be impaired by the abolition of the office or the diminu- tion of the salary. Myers v. English, 9 Cal. 341. There is a clear distinction, however, between an office-holder, as such, and one holding a contract with the state for the performance of services. McDon- ald v. Yuba County, 14 Cal. 444. this code. No action or proceeding t, and no right accrued, is affected by ein must conform to the requirements **Eight accrued." This expression em braces all civil and political rights, abso- lute and qualified, under the law as it ex- isted prior to the codes, whether arising out of past contracts express or implied, or ownership of property, or in other words, all vested rights. Dewey v. Lambier, 7 Cal. 347; Cohen v. Davis, 20 Cal. 187; Welch V. Sullivan, 8 Cal. 511; White v. Moses, 21 Cal. 34; Scott v. Dyer, 54 Cal. 430. The code, being remedial in its na- ture, is confined to the remedy, and does not extend to vested rights; a remedy is not a vested right; thus, a motion for a new trial is a remedy, and not a right. Kelly V. Larkin, 47 Cal. 58; Towuley v. Adams, US Cal. 3S2; 50 Pac. 550. CODE COMMISSIONERS' NOTE. The repeal of a statute conferring rights or presciil>inK n^ne- dies would have the eilect to extinguish actions instituted under it, and whioh were iicudinK wlieii the repeal went into operation, if no provision were made enabling the court to proceed to try and determine them. McMinn v. Bliss, 31 Cal. 122. Where an inchoate right accrued under the statutes as they existed previous to the adoption of the code, and by the code the proceedings to perfect the right are regulated and prescribed, such regulations and requirements must be pur- sued, or the party is remediless. See particularly People V. Livingston, 6 Wend. 526; Sedgwick on Stat, and Const. Law, 679; see post, § 18. for "takes effect"; and (2) the last clause sub- stituted for "the time of limitation continues to run and has the like effect as if the whole period had begun and ended after its adoption." 3. Amendment by Code Amdts. 1901, p. 117; unconstitutional. See note ante, § 5. §10 PRELIMINARY PROVISIONS. 10 Limitation of actions. Where the stat- ute of limitations commenced to run be- fore the codes went into efifect, it contin- ued to run, and was not extended by the enactment of the codes; the running of the statute, in such case, being governed by the law in force at the time of the passage of the codes. Benjamin v. El- dridge, 50 Cal. 612. New and amended sections of the code are governed by this section; but they are not taken to have been the law prior to the time they take effect. Central Pacific R. R. Co. v. Shack- elford, 63 Cal. 261. Retrospective operation of statutes. See note 11 Am. Dec. 98. When retrospective operation of statutes is per- missitile. Kee note 10 Am. Dec. 131. Retrospective operation of statute of limita- tions. See note 111 Am. St. Rep. 4.">.5. Retroactive operation of statute of limitations. See notes Ann. Cas. 1912A, 1041; 4 Ann. Cas. 166. CODE COMMISSIONERS' NOTE. Necessary, because the statutes of limitations for civil ac- tions and proceedings are embodied in this code. § 10. Holidays. Holidays witliin the meaning of this code, are every Sunday, the first day of January, twelfth day of February, to be known as Lincoln day, twenty-second day of February, thirtieth day of May, fourth of July, ninth day of September, first J\Ionday in September, twelfth day of October, to be known as "Columbus day," twenty-fifth day of December, eveiy 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 public fast, thanksgiving or holiday. If the first day of January, twelfth daj' of February, twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the twelfth day of October or the twentj^-fifth day of December falls upon a Sunday, the- Monday following is a holidaj^ Every Saturday from twelve o'clock noon until twelve o'clock midnight is a holiday as regards the transaction of busi- ness in the public offices of this state, and also in political divisions thereof where laws, ordinances or charters provide that public offices shall be closed on holidays; provided, this shall not be construed to prevent or invalidate the issuance, filing, service, execution or recording of any legal process or written instrument whatever on such Saturday afternoons; and provided further, that the public schools of this state shall close on Saturday, Sun- day, the first day of January, the thirtieth day of May, the fourth day of July, the twenty-fifth day of December and on every day appointed by the President of the United States or the governor of this state for a public fast, thanksgiving or holiday. Said public schools shall continue in session on all other legal holidays and shall hold proper exercises commemorating the day. Boards of school trustees and city boards of education shall have pow-er to declare a holiday in the public schools under their jurisdiction when good reason exists therefor. Non-Judicial days. See post, § 134. Last day falling on holiday. See post, § 13. Similar provisions. See Civ. Code, § 7; Pol. Code, § 10. Legislation § 10. 1. Enacted March 11, 1873, and then read: "Holidays, within the meaning of this code, are: every Sunday, the first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth day of De- cember, 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 public fast, thanks- giving or holiday." 2. Amended by Code Amdts. 1880, p. 59, adding (1) "the thirtieth (30th) day of May"; and, at end, (2) "If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, or the twenty-fifth day of December, fall upon a Sunday, the Monday following is a holiday." 3. Amended by Stats. 1889, p. 46, adding "the ninth day of September" in both places. 4. Amended by Stats. 1893, p. 186, adding "the first Monday in October." 5. Amended by Stats. 1897, p. 15, changing "the first Monday in October" to "the first Monday in September." 6. Amended by Stats. 1907, p. 561; the code commissioner saying, "Merely adds the Sat- urday half-holiday sentence, in order to make this section correspond to the amendment adopted to § 10 of the Political Code in 1905 and § 7 of the Civil Code in 1907." 7. Amended by Stats. Extra Sess. 1907, p. 7, (1) adding, at end of first sentence, "and such days as the governor may declare as special holidays"; (2) changing "this" to "that such" after "provided"; (3) adding a second proviso, reading, "Provided further that the governor of the state may declare special holidays and he may in one i)roclamation designate one or any number of consecutive days, as special holidays, and during any such special holidays no public duty shall be suspended or prohibited except such as affect the administration of justice in 11 LAST DAY FALLING ON HOLIDAY — COMPUTATION OF TIME. §§ 11, 12 the courts of this state as prescribed hy section 135 of this code fur the control of sucli courts." 8. Amended by Stats. 1909. p. 22, (1) add- ing (a) "the twelfth day of Octolicr, to be known as 'Disoovery Day,'" and (b) "the twelfth day of October"; (2) canceling the amendments of extra session of 1907, noted supra. 9. Amended by Stats. 1911, p. 1122, (1) in first sentence, (a) omitting comma after "Holi- days," thus making the following phrase re- strictive; (b) adding "twelfth day of February, to be known as 'Lincoln Day'"; (c) substituting "Columbus Day" for "Discovery Day"; (2) in second sentence, (a) adding "twelfth day of February"; (b) substituting the verb "falls" for "fall," thus changing the mood; (3) in the first two sentences of the old section, the definite article "the" was used before the day of the month, in each instance; (4) in third sentence, (a) substituting "shall" for "may," in the clause "public ofTices shall be closed"; (b) add- ing all the matter after the end of the first pro- vision, from "and provided further," to the end of the section. Where last day is a holiday. Where the last day appoiutcd for the performance of an act falls upon a holiday, the act may be performed at any time during the next succeeding day (Muir v. Galloway, 61 Cal. 4flS; Blackwood v. Cutting Packing Co., 71 Cal. 461; 12 Pac. 493; Diggins v. Harts- horne, lOS Cal. 154; 41 Pac. 283; Northey V. Bankers' Life Ass'n, 110 Cal. 547; 42 Pac. 1079; Reclamation District v. Hamil- ton, 112 Cal. 603; 44 Pac. 1074; California Improvement Co. v. Quinchard, 119 Cal. 87; 51 Pac. 24; Crane v. Crane, 121 Cal. 99; 53 Pac. 433; Frassi v. McDonald, 122 Cal. 400; 55 Pac. 139, 772); and this is the rule, also, where both of the last two days arc holidays (Crane v. Crane, 121 Cal. 99; 53 Pac. 433); and where the last day is a holiday falling on a Sunday, and by § 11 of this code the Monday following is a holiday, in both of which cases the time is extended so as to include the third suc- ceeding day. Estate of Rose, 63 Cal. 346. Saturday afternoon. Courts should treat Saturday afternoon as a legal holiday. People V. Heacock, 10 Cal. App. 450; 102 Pac. 543. Special holidays. The superior court has jurisdiction, on a day declared to be a spe- cial holiday, to proceed with the trial of a charge of felony. Eisser v. Superior Court, 152 Cal. 531; 93 Pac. 85. Judicial act performed on holiday. A prisoner convicted of a felony cannot be sentenced upon a legal holiday. In re Smith, 152' Cal. 566; 93 Pac. 191. Effect of invalid holiday. The duration of an invalid holiday cannot operate to extend the time to be computed for serv- ing a statement on motion for a new trial. Donovan v. ^tna Indemnity Co., 10 Cal. App. 723; 103 Pac. 365. Judicial notice. Courts take judicial no- tice of special holidays declared by the governor. Poheim v. Meyers, 9 Cal. App. 31; 98 Pac. 65, § 11. Same. If the first day of January, the twenty-second day of Feb- ruary, the thirtieth day of May, the fourth day of July, the ninth day of September, the twelfth day of October or the twenty-fifth day of December fall upon a Sunday, the Monday following is a holiday. fall on a Sunday, the succeeding Monday is a holiday, and is not to be counted in the computation of time in which an act is to be done (Estate of Eose, 63 Cal. 346); and where, by contract executed on a Sunday, a party is given all of the fol- lowing day within which to perform, no portion of the third day is included. Eopes V. Rosenf eld's Sons, 145 Cal. 671; 79 Pac. 354. Transfer of holiday from Sunday to Monday. See note 19 L. R. A. 320. Last day falling on holiday. See post, § 13. Similar provision. See Pol. Code, § 11. Legislation § 11. 1. Enacted March 11, 1S72. 3. Amended by Code Amdts. 1873-74, p. 280, adding "the fourth day of July." 3. Repeal by Stats. 1901, p. 117; uncon- stitutional. See note ante, § 5. 4. Amended by Stats. 1909, p. 22, adding (1) "the thirtieth day of May" and (2) "the ninth day of September, the twelfth day of October." Holiday falling on Sunday. Where any of the holidays mentioned in this section § 12. Computation of time. 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. Supervisors, 33 Cal. 487; Hagenmeyer v. Board of Equalization, 82 Cal. 214; 23 Pac. 14. Day of the act excluded. It has been uniformly held, from an early day, to be the rule in this state, that, in the compu- tation of time, the first day is excluded and the last day included; differing from the English practice, which was the inclu- sive method, under which the time began to run upon the day of the happening of the event (Scoville v. Anderson, 131 Cal. Time, tow computed. Year, week, and day, defined. Pol. Code. §§ 3255 et seq. Similar provisions. See Civ. Code, §10; Pol. Code, § 11. Legislation § 12. Enacted March 11, 1873. Time, when directory. The time pre- scribed to a public body, in the exercise of a function in which the public is con- cerned, is merely directory, unless there are negative words restraining the exer- cise of the power to that time. Tuohy v. Chase, 30 Cal. 524; People v. Board of 13 PRELIMINARY PROVISIONS. 12 590; 63 Pae. 1013 j Dingley v. McDonald, 124 Cal. 90; 56 Pac. 790; Perham v. Kuper, 61 Cal. 331; Misch v. Mayhew, 51 Cal. 514; Hagenmeyer v. Board of Equal- ization, 82 Cal. 214; 23 Pac. 14; Landre- gan V. Peppin, 86 Cal. 122; 24 Pac. 859; Derby v. Modesto, 104 Cal. 515; 38 Pac. 9O0; Bates v. Howard, 105 Cal. 173; 38 Pac. 715; Bellmer v. Blessington, 136 Cal. 3; 68 Pac. Ill); but, under our rule, the last day cannot be excluded also. Lan- dregan v. Peppin, 86 Cal. 122; 24 Pac. 859. Apparently, however, the inclusive rule seems to have obtained at one time in this state. People v. Clark, 1 Cal. 406; Price V. Whitman, 8 Cal. 412. The exclusive rule applies, except where the intent to in- clude is apparent. Savings and Loan So- cietv v. Thompson, 32 Cal. 347; Derby v. Modesto, 104 Cal. 515; 38 Pac. 900; Peti- tion of Los Angeles Trust Co., 158 Cal. 603; 112 Pac. 56. Last day falling on a holiday. The last dav is to be excluded when it falls upon a holiday (Muir v. Galloway, 61 Cal. 498; Estate of Eose, 63 Cal. 346; Northey v. Bankers' Life Ass'n, 110 Cal. 547; 42 Pac. 1079; Eobinson v. Templar Lodge, 114 Cal. 41; 45 Pac. 998; Crane v. Crane, 121 Cal. 99; 53 Pac. 433; Frassi v. McDonald, 122 Cal. 400; 55 Pac. 139, 772; Baxter v. Vine- land Irrigation District, 136 Cal. 185; 68 Pac. 601; Blackwood v. Cutting Packing Co., 71 Cal. 461; 12 Pac. 493; Jenness v. Bowen, 77 Cal. 310; 19 Pac. 522) ; but this rule does not apply to matters pending in the supreme court, that court being always open for the transaction of business (x\d- ams v. Dohrmann, 63 Cal. 417), nor does it apply to other courts, where the business is not judicial. Eeclamation District v. Hamilton. 112 Cal. 603; 44 Pac. 1074. Definition of terms. A day is defined by § 3259 of the Political Code as the period of time between any midnight and § 13. Certain acts not to be done on holidays. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed 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 business day with the same effect as if it had been performed upon the day appointed. See Civ. Code, §11; Pol. v. Hamilton, 112 Cal. 603; 44 Pac. 1074. Thus, a criminal information maj^ be filed (People V. Helm, 152 Cal. 532; 93 Pac. 99), and a sale may be made by a tax-collector (Young V. Patterson, 9 Cal. App. 469; 99 Pac. 552), on a legal holiday. Contract to be performed on holiday. Where the day of performance of a con- tract falls upon a holiday, it may be per- formed on the succeeding day. Hibernia Sav. & L. Soc. V. O'Grady, 47 Cal. 579; Northey v. Bankers' Life Ass'n, 110 Cal. 547; 42 Pae. 1079. And this is the rule in cases of stipulations of attorneys (Black- wood V. Cutting Packing Co., 71 Cal. 461; the midnight following; and fractions of a day are not regarded in law, unless the order of successive events is to be ascer- tained, or justice requires it (Derby v. Modesto, 104 Cal. 515; 38 Pac. 900; People V. Clark, 1 Cal. 406; Craig v. Godfrey, 1 Cal. 415; 54 Am. Dec. 299); and where the order of occurrence involves the legality or propriety of private rights, fractions may be regarded. People v. Beatty, 14 Cal. 566; Scoville v. Anderson, 131 Cal. 590; 63 Pae. 1013. A week is defined by the codes to be a period of seven consecutive days. Derby v. Modesto, 104 Cal. 515; 38 Pac. 900. A month is a calendar month, and not a lunar month, unless otherwise designated. Videau v. Griffin, 21 Cal. 389; Savings and Loan Society v. Thompson, 32 Cal. 347; Sprague v. Norway, 31 Cal. 173. A year is three hundred and sixty-five days; a half-year, one hundred and eighty- two days; a quarter-year, ninety-one days; the added day of a leap-year, and the day immediately preceding it, if they occur in any such period, must be reckoned to- gether as one day. Pol. Code, §3257; Brown v. Anderson, 77 Cal. 236; 19 Pac. 487. Computation of time. See notes 7 Am. Dec. 250; 78 Am. St. Rep. 372. How time within which an act is to be done is computed. See note 46 Am. Rep. 410. Inclusion of day of accrual of action in com- puting limitation against action. See notes Ann. Gas. 1913D, 1068; 12 Ann. Gas. 58. Holidays as first or last day of time computed. See note 49 L. R. A. 203. CODE COMMISSIONERS' NOTE. Price v. Whitman, 8 Cal. 412; Iron Mountain Co. v. Haight, 39 Cal. 540; Soldier's Voting Bill, 45 N. H. 612. A day is not to be considered a imit to the prejudice of the rights of a party, and an examination may be had as to the very point of time when the act was done. Craig v. Godfroy, 1 Cal. 415, 54 Am. Dec. 299; People V. Clark, 1 Gal. 406. Whenever time becomes important, courts will inquire into a day, or even a fractional portion of a day. People v. Beatty, 14 Cal. 566. Similar provisions. Code, § 13. Legislation § 13. Enacted March 11, 1872. Where day appointed by law is a holi- day. The supreme court, under the con- stitution, being always open for the trans- action of business, is not affected by this section (Adams v. Dohrmann, 63 Cal. 417; Herrlich v. McDonald, 83 Cal. 505; 23 Pac. 10; Niles v. Edwards, 95 Cal. 41; 30 Pae. 134); neither is the performance of min- isterial acts affected thereby. Young v. Patterson, 9 Cal. App. 469; 99 Pac. 552; Heisen v. Smith, 138 Cal. 216; 94 Am. St. Kep. 39; 71 Pac. 180; Eeclamation District 13 SEAL, DEFINED — JOINT AUTHORITY. §§ H 15 12 Pac. 493); and if the time expires on a holiday, and the next day is a Sunday, the act may be performed on the succeed- ing Monday (Crane v. Crane, 121 Cal. 99; 53 Pac. 433); and if the last day for the performance of an act falls on a Sunday, it may bo done on the following Monday. Wilcox V. Engebretsen, lUO Cal. 2SS ; 116 Pac. 750. This section amounts to no more than a legal permission for the postpone- ment of the act, and does not prohibit it from being done upon the day designated. People V. Helm, 152 Cal. 532; 93 Pac. 99. § 14. "Seal" defined. When the seal of a court, public officer, or per- son is required b}^ 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. Computation of time for performance of act required by statute, when last day falls on Sun- day. .Sco iKitcs 1:0 Ann. Ciis. 1318; 7 Ann. Ca.s. 3li."); 38 L. R. A. (N. S.) 11 ()2. Validity of contract completed on secular day. where preliminary negotiations are conducted on Sunday. Sfi- notp 1 (i Ann. «';is. O.'fJ. Computation of days of grace allowed for tj.tv- ment of insurance premium or assessment, where date of payment or expiration of such period falls on Sunday or holiday. See nole 23 L. li. A. (N. S.) 7J9. CODE COMMISSIONERS' NOTE. Sunday is not ri'};ard<'(l. .Mcliill v. Hank of Uuitcd Slates, 12 Wheat. 511; 6 L. Kd. 711. Seals. See post, §§ 147-153, 1929-1934. Abolition of seals. See Civ. Code, § 1629. Similar provision. See Pol. Code, § 14. Legislation S 14. Enacted March 11, 1872. Seal, defined. A seal, at common law, meant an impression upon wax or wafer, or some other tenacious substance capable of being impressed; but in this state a seal is sufficient, where the impression is made upon paper only, and not upon wax (Con- nolly V. Goodwin, 5 Cal. 220; Hastings v. Vaughn, 5 Cal. Slo); and it may be made as well by a pen as by a stamp. Hastings V. Vaughn, 5 Cal. 315. The court will as- sume from the word "(Seal)," after the certificate of a notary, printed in a tran- script, that the original was properly exe- cuted. Touchard v. Crow, 20 Cal. 150; SI Am. Dec. 108. In copying a sealed instru- ment, it is not necessary to transcribe the seal. Jones v. Martin, 16 Cal. 165; Smith V. Dall, 13 Cal. 510. The omission of the county recorder to make any mark for the seal does not vitiate the writing. Smith V. Dall, 13 Cal. 510. Seal of court. The seal affixed to a doc- ument, bearing the inscription of the court to which it belongs, sufficiently designates the court, and the omission to designate the officer's official connection with the court is immaterial. Touchard v. Crow, 20 Cal. 150; 81 Am. Dec. 108. Seal of corporation. A corporation may adopt the private seal of the several trus- tees, or of any one of them (Gashwiler v. Willis, 33 Cal. 11; 91 Am. Dec. 607); but the seal of an individual, when not so adopted by the corporation, is not suffi- cient. Kichardson v. Scott River Water etc. Co., 22 Cal. 150. "Seal," defined. See note 50 Am. St. Rep. 156. What is "seal." See note Ann. Gas. 1912C, 42. "Seal," as suf&cient seal. See note 11 Ann. Cas. 1110. "L. S.," as sufficient seal. See note 11 Ann. Cas. 250. Sufficiency of scroll as seal. See note 1 L. R. A. 861. CODE C03.IMISSI0NERS' NOTE. An impres- sion upon paper constitutes a gond seal. Con- nolly V. Goodwin, 5 Cal. 220. There is "no good reason why such impression should not be m.'.de with a pen as well as with what is techni- cally a stamp. The object is to give character to the instrument. . . . This is as well effected by a scrawl witli the word 'seal' within it, or with the initials 'L. S.' " Hastings v. Vaughn, 5 Cal. 315. § 15. Joint authority. Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the au- thority. Similar provisions. See Civ. Code, §12; Pol. Code, § 15. Legislation § 15. Enacted March 11, 1S73. Authority of majority. Before the adop- tion of this section, a grant of joint au- thority required the presence and partici- pation of the whole number to whom the authority was granted, a majority of whom, however, could decide the question (Talcott V. Blanding, 54 Cal. 289; People V. Coghill, 47 Cal. 361; Wilbur v. Lynde, 49 Cal. 290; 19 Am. Rep. 645; People v. Aheru, 52 Cal. 208); but this section au- thorizes a majority of a quorum to act, and to decide any question (People v. Har- rington, 63 Cal. 257; People v. Hecht, 105 Cal. 621; 45 Am. St. Rep. 96; 27 L. R. A. 203; 38 Pac. 941); so a majority of the grand jury may present an accusation, if not an indictment. Coffey v. Superior Court, 2 Cal. App. 457; S3 Pac. 580. §§ 16, 17 PRELIMINARY PROVISIONS. 14 § 16. Words and phrases. Words and phrases are construed according to the context and the approved usage of the language ; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition. Similar provisions. See Civ. Code, § 13; Pol. (Central Pacific R. E. Co. v. Beal, 47 Cal. ^'"^''' ^ ^^- 151); and if it has both a popular and a Legislation § 16. Enacted March 11, 1873. technical signification, it will be given its Construction of words and phrases. The popular meaning, unless the subject or con. rule here announced prevailed before the text indicates that it was used in its tech- adoption of the codes, and applies alike to ^^^^^ sense. Weill v. Keufield, 54 Cal. Ill; contracts, wills, statutes, and the constitu- Towle v. Matheus, 130 Cal. o74; C2 Pac. tion. Quigley v. Gorham, 5 Cal. 418; 63 10^4. The word "assessment," m § 4 of Am. Dec. 139; Gross v. Fowler, 21 Cal. article VI of the constitution, conferring 392; Appeal of Houghton, 42 Cal. 35; Peo- appellate jurisdiction in cases at law m- ple V. Eddv, 43 Cal. 331; 13 Am. Eep. 143; volvmg "the legality of tax, impost, as- Weill V. Kenfield, 54 Cal. Ill; San T'ran- sessment, toll, or municipal fine," refers to Cisco V. Flood, 64 Cal. 504; 2 Pac. 264; assessments relating to public taxation, or Cottle V. Spitzer, 65 Cal. 456; 52 Am. Rep. 'to raise funds for local public improve- 305- 4 Pac 435. ments: it has no reference to assessments Words of common use. Words of com- of corporate stock. Bottle Mining etc. Co. mon use arc to be taken in their plain and v. Kern, 154 Cal. 96; 97 Pac. 25. The word ordinary import; forced constructions, "near," as used m the street-assessment which extend or limit the terms, are not law, does not signify any precise measure permissible. Sprague v. Norway, 31 Cal. of distance; it is a relative term, and its 173; Rosenberg v. Frank, 58 'Cal. 387; meaning must be determined by a refer- Miller v. Dunn, 72 Cal. 462; 1 Am. St. Rep. ence to the subject-matter. Haughawout 67- 14 Pac. 27. v- Percival, 161 Cal. 491; Ann. Cas. 1913D, Teclmicarwords. Technical words will H^; "L19 Pac. 649. The words "husband" be presumed to be used in a technical sense and "wife," as applied to domestic rela- (Bruner v. Superior Court, 92 Cal. 239, 28 tions, have each bitt one meaning: 'hus- Pac. 341), unless a different intent is mani- band," a man that has a wife; "wife," a fest from the context. Estate of Lufkin, woman that has a husband; the words can- 131 Cal. 291; 63 Pac. 469. If a technical ^^ot mean an unmarried man and an un- word is manifestly used in an untechnical married woman, nor a divorced man and a sense, however, the court will give it the divorced woman. Zanone v. Sprague, 16 meaning intended by the party using it ^^^- "^PP- 3^3; 116 Pac. 898. § 17. Certain terms used in this code defined. 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 natural person; the word "county" includes "city and county"; writing includes printing and typewriting; oath includes affirmation or declaration ; and every mode of oral statement, under oath or affirmation, is embraced by the term "testify," and every written one in the term "depose" ; signature or subscription includes mark, when the person cannot write, his name being written near it by a person who writes his own name as a witness; provided, that when a signature is by mark it must, in order that the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons wdio must subscribe their own names as witness thereto. The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word "property" includes both real and personal property; 2. The words "real property" are coextensive with lands, tenements, and hereditaments ; 15 WORDS AND PHRASES, DEFINED. §17 3. The words "personal property" include money, goods, chattels, things in action, and evidences of del^t; 4. The word "month" means a calendar month, unless otherwise ex- pressed; 5. The word "will" includes codicil; 6. The word "writ" signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer; and the word "pro- cess" a writ or summons issued in the course of judicial proceedings; 7. The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories; and the words "United States" may include the district and territories; 8. The word "section" whenever hereinafter employed, refers to a sec- tion of this code, unless some other code or statute is expressly mentioned. 9. The word "affinity" when applied to the marriage relation, signifies the connection existing in consequence of marriage, between each of the married persons and the blood relatives of the other. 13. Words used in the present tense include the future, but exclude the past. 14. The word 'will' includes codicils. 15. The word 'writ' signifies an order or precept in writing, issued in the name of the people, or of a court, or judicial officer. IG. 'Process' is a writ or summons issued in the course of judicial proceedings. 17. llie word 'vessel,' when used with reference to shipping, includes ships of all kinds, steamboats, ai;d steamships, canal-boats, and every structure adapted to be navigated from place to place. 18. The term 'peace-officer' signifies any one of the oflicers mentioned in § 817 of the Penal Code. 19. The term 'magistrate' signifies any one of the oflicers mentioned in § 806 of the Penal Code." 3. Amended by Stats. 1873-74, p. 280, to read as at present, except for the changes of 1903. 3. Amendment by Stats. 1891, p. 117; un- constitutional. See note ante, § .5. 4. Amended by Stats. 1903, p. 134, (1) adding the clause, "the word 'county' includes 'city and county,' " after the words "a naturai person"; (2) changing, after words "written near it," from "and witnessed by a person who writes his own name as a witness" to read to end of paragraph as at present; and (3) adding subds. 8, 9. Gender. The masculine includes the feminine and the neuter gender. Foltz v. Hoge, 54 Cal. 28; People v. Pico, 62 Cal. 50; People v. Monteith, 73 Cal. 7; 1-i Pac. 373. Thus, the term "horse" includes all animals of the horse kind, male and fe- male (People V. Pico, 62 Cal. 50), as well as a gelding. People v. Monteith, 73 Cal. 7; 14 Pac. 373. Number. The singular number includes the plural, and vice versa. Simonson v. Burr, 121 Cal. 582; 54 Pac. 87; Quint v. Dimond, 135 Cal. 572; 67 Pac. 1034; Down- ing V. Rademaeher, 136 Cal. 673; 69 Pac. 415; People v. Kelly, 146 Cal. 11&; 79 Pac. 846. In applying this section to the construction of §§ 938, 941, and 963, post, such sections must be read as if the words "appeal," "appellant," and "party ag- grieved" were plural. Estate of Sutro, 152 Cal. 249; 92 Pac. 1027. Person. The word "person" includes an artificial as well as a natural person. Spring Valley Water Works v. Schottler, Notice, defined. See Pol. Code, § 4175. Process, defined. See Pol. Code, § 4175. Words used in boundaries, defined. See Pol. Code, §§ 390:i-39l)7. Words and phrases, defined. See Pen. Code, § 7; Pol. Code, § 17; Civ. Code, § 14. Legislation § 17. 1. Enacted March 11, 1872, based on Practice Act, § (347, which read: "Words used in this act in the present tense shall be deemed to include the future as well as the present; words used in the singular number shall be deemed to include the plural, and the plural the singular; writing shall be deemed to include printing or printed paper; oath to include affirma- tion or declaration; signature or subscription, 1;o include 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." As enacted in 1872, § 17 read: "Whenever the terms mentioned in this section are employed m this code they are employed in the senses here- after affixed to them, except where a different sense plainly appears: 1. 'Ihe term 'signature' includes any name, mark, or sign, written with intent to authenticate any instrument or writing. 2. The term 'writing' includes both printing a.iu writing. 3. The term 'land,' and the phrases 'real estate' and 'real property,' includes lands, tenements, and hereditaments, and all rights thereto, and interests therein. 4. The words 'personal property' include money, goods, chat- tels, evidence of debt, and 'things in action.' 5. The word 'property' includes personal and real property. G. Ihe word 'month' means a calen- dar month, unless otherwise expressed; and the word 'year,' and also the abbreviation 'A. D..' is equivalent to the expression 'year of our Lord.' 7. The word 'oath' includes 'affirmation' in all cases where an affirmation may be substi- tuted for an oath; and in like cases the word 'swear' includes the word 'affirm.' Every mode of oral statement under oath or affirmation is embraced by the term 'testify,' and every writ- ten one in the term 'depose.' 8. The word 'state,' when applied to the different parts of the United States, includes the District of Colum- bia and the territories; and the words 'United States' may include the district and territories. 9. Wh3re the term 'person' is used in this code to desigaate the party whose property may be the subject of any offense, action, or proceeding, it includes this state, any other state, govern- ment, or country which may lawfully own any property within this state, and all public and private corporations or joint associations, as well as individuals. 10. The word 'person' includes bodies politic and corporate. 11. The singular number includes the plural, and the plural the singular. 12. Words used in the masculine gen- der comprehend as well the feminine and neuter. §18 PRELIMINARY PROVISIONS. 16 62 Cal. 69; Douglass v. Pacific Mail S. S. Co., 4 Cal. 304; Central Pacific E. K. Co. v. State Board of Equalization, 60 Cal. 35; People V. Eiverside, 66 Cal. 2SS; 5 Pac. 350. Writing A printed signature instead of a written one is suflicient, when appended to a publislied resolution of a board of supervisors (Williams v. McDonald, 58 Cal. 527); and an attorney's printed sig- nature to a pleading will not render void a judgment. Hancock v. Bowman, 49 Cal. 413. Though not expressly authorized by statute, the printed signature of the clerk is sufficient, where the seal of the court is attached to the document (Ligare v. Cali- fornia Southern E. E. Co., 76 Cal. 610; 18 Pac. 777) ; and the facsimile of an auto- graph may be adopted by a person, and papers issued with such an autograph printed thereon, issued by his direction, are valid. Pennington v. Baehr, 48 Cal. 565. Property. The word "property," when used in its ordinary, popular sense, in- cludes not only visible and tangible prop- erty, but choses in action also, such as solvent debts secured by mortgage (Peo- ple V. Eddy, 43 Cal. 331; 13 Am. Eep. 143); and the right to appeal an action is prop- erty (People V. Cadman, 57 Cal. 562); but the word "property" does not include "credits," within § 13 of article XI of the constitution of 1849, concerning revenue (People V. Hibernia Sav. & L. Soc, 51 Cal. 243; 21 Am. Eep. 704; Bank of Mendo- cino V. Chalfant, 51 Cal. 369; Mackay v. San Francisco, 113 Cal. 392; 45 Pac. 696); nor does it include a business, occupation, or calling (People v. Coleman, 4 Cal. 46; 60 Am. Dec. 581); nor a license to retail intoxicating liquors. Hevren v. Eeed, 126 Cal. 219; 58 Pac. 536; Ex parte Christen- sen, 85 Cal. 208; 24 Pac. 747. Real property. "Eeal property" is coex- tensive with lands, tenements, and here- ditaments. Summerville v. Stockton Mill- ing Co., 142 Cal. 529; 76 Pac. 243. Personal property. A promissory note, under the third subdivision of this section, is personal property (Hoxie v. Bryant, 131 Cal. 85; 63 Pac. 153), as is also money (Butler V. Baber, 54 Cal. 178); and an un- divided interest in real property converted into a right to receive money in lieu thereof. John M. C. Marble Co. v. Mer- chants' Nat. Bank, 15 Cal. App. 347; 115 Pac. 59. Undertaking on appeal. This section does not apply to an undertaking on ap- peal; its signification is to be determined from the language used. Bergevin v. Wood, 11 Cal. App. 643; 105 Pac. 935. "At." The word "at," when applied to the place or location of an object is not treated as definitely locative; it denotes nearness or proximity, and is less definite than "in" or "on." Los Angeles County v. Hannon, 159- Cal. 37; Ann. Cas. 1912B, 1065; 112 Pac. 878. "Person," as including private corporation. See note 20 Ann. Cas. 737. Who or wbat is included in the term "person." See note 19 L. R. A. 222. What is sufficient signature. See note 55 Am. Rep. 651. Signature by mark. See note 22 L. R. A. 370. "Deposition," defined. See note 13 L. R. A. 366. As to whether ability to write invalidates sig- nature made by mark or aid of other person guiding pen. See note 7 L. R. A. (N. S.) 1193. "Property," as including standing timber, within meaning of fire-insurance policy. See note 6 Ann. Cas. 569. "Property," within false-pretenses statute, as including bills and notes. See note 9 Ann. Cas. 970. "Personal property," in will, as including money. See note Ann. Cas. 1913D. 857. What is "month," in computation of time. See note 78 Am. St. Rep. 384. Meaning of "month." See note 12 L. R. A. 770. "Affinity," defined. See note 11 L. R. A. 630. § 18. Statutes, etc., inconsistent with code repealed. No statute, law, or rule is continued in 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 repealed and abrogated. This repeal or abrogation does not re- vive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any action or proceeding already taken, except as in this code provided; nor does it affect any private statute not expressly repealed. Effect of code on prior statutes. See ante, § 8; also repealing clause at the end of this code. Limitations, effect of code on. See ante, § 9. Retroactive effect. See ante, § 3. Statutes continued in force. See Pol. Code, 5§ 18, 10. Vested rights. See ante, § 8. Legislation § 18. 1. Enacted March 11, 1873. 2. Amendment by Stats. 1901, p. 118; un- constitutional. See note ante, § 5. Cases not provided for by the code. In cases not provided for by the code, the existing statutes governing the same are not repealed (Whitaker v. Haynes, 49 Cal. 596; Heppe v. Johnson, 73 Cal. 265; 14 Pac. 833; Wheatland Mill Co. v. Pirrie, 89 Cal. 459; 26 Pac. 964; Fanning v. Leviston, 93 Cal. 186; 28 Pac. 943; Golden Gate 17 THIS CODE, HOW CITED, ENUMERATED, ETC. §19 Lumber Co. v. Sahrbacher, 105 Cal. 114; 38 Pac. 63o) ; nor are subsequent statutes passed at the same sessiou. Smith v. Mc- Dermott, 9;i Cal. 421; 29 Pac. 34. Consistent statutes. Before the onait- ment of the codes, the rule was, that, where a later statute showed a clear in- tent to prescribe the only rule which should govern in the cases provided for, the former statute was repealed thereby, whether consistent or inconsistent (Sacra- mento V. Bird, 15 Cal. 294; Ex parte Smith, 40 Cal. 419); but where such in- tent did not appear, both statutes were allowed to stand together, unless the re- pugnancy between them was irrecon- cilable. Perry v. Ames, 26 Cal. 372. Inconsistent provisions. A repeal is either by express words or by necessary implication: a repeal by implication takes place whenever it is apparent from the subsequent legislation that the legislature did not intend that the former act should remain in force (Christy v. Board of Su- pervisors, 39 Cal. 3); but repeals by im- plication are not favored by the courts (Merrill v. Gorham, 6 Cal. 41; Scofield v. White, 7 Cal. 400; People v. San Fran- cisco etc. R. R. Co., 28 Cal. 254; In re Yick Wo, 68 Cal. 294; 58 Am. Rep. 12; 9 Pac. 139); and it is only where there is a plain and unavoidable repugnance that a repeal by implication will take place (Estate of Wixom, 35 Cal. 320; Ex parte Smith, 40 Cal. 419; People v. Linn, 23 Cal. 150; Peo- ple V. Sargent, 44 Cal. 430) ; and where the former statute regulates the matter only incidentally, the later statute, which is made to govern the whole subject-mat- ter, repeals so much of the former statute as is in conflict (Dobbins v. Board of Su- pervisors, 5 Cal. 414; People v. McGuire, 32 Cal. 140), and then only so far as the repugnancy extends (Crosby v. Patch, 18 Cal. 438); but, where possible, such a con- struction will be given the two statutes as will enable both to have effect. Crosby v. Patch, 18 Cal. 438; Pond v. Maddox, 38 Cal. 572; Cerf v. Reichert, 73 Cal. 360; 15 Pac. 10. Express continuance in force. Where an act contains a clause repealing all laws in conflict therewith, a previous repugnant law is repealed thereby, unless the terms of the act show an intention to keep such previous law in force (People v. Grippen, 20 Cal. 677); but where such an act does not repeal a prior act, by name, on the same subject-matter, it leaves in force such provisions thereof as are not in conflict with the later act (People v. Durick, 20 Cal. 94) ; and where the subsequent stat- ute designates certain sections or portions of the former act as repealed by implica- tion, the portions not mentioned are con- tinued in force (Crosby v. Patch, 18 Cal. 438), and in such cases the two acts will be construed together as one act (Man- •love v. White, 8 Cal. 376); but a mere declaration in a subsequent statute, that a repealing statute shall not repeal cer- tain laws or provisions of a prior act, will not exempt them from the repealing eft'ect of such prior act, nor will it revive the laws so repealed. State v. Conkling, 19 Cal. 501. Revival of former laws. Where a gen- eral act is repealed as to a part thereof, and is afterwards amended as thus par- tially repealed, the amendment will not revive the act as to the portion repealed. People v. Tyler, 36 Cal. 522. The repeal of a repealing act does not revive the for- mer act, nor give it any force or efi:eet; to revive the former, it must be re-enacted (People V. Hunt, 41 Cal. 435; Meek v. McClure, 49 Cal. 623; Thomason v, Rug- gles, 69 Cal. 465; 11 Pac. 20); but where a subsequent special statute controls the provisions of a general statute, the latter is revived by an amendment of the for- mer, calculated to give effect to the gen- eral law. People v. Phopnix, 6 Cal. 92; People V. Wells, 11 Cal. 329. Effect of pending proceeding. The por- tions of the amended sections of the code, which are merely copied in the new en- actment without change, are not to be considered as repealed thereby and again re-enacted, but to have been the law con- tinuously, and the new parts or changed portions are not to be taken as having been the law at any time prior to the passage of the amended act. Central Pa- cific R. R. Co. V. Shackelford, 63 Cal. 261; People V. Sutter Street Ry. Co., 117 Cal. 604; 49 Pac. 736. Implied repeal of statute by code, revision or re-enactment. See notes 88 Am. St. Kep. 287; 5 Ann. Cas. 502. CODE COMMISSIONEES' NOTE. "Every statute must be considered accurding to what appears to have been the intention of the legis- lature, and even though two statutes relating to the same subject be not in terms repugnant or inconsistent, if the latter statute was clearly intended to prescribe the only rule which should govern in the case provided for, it will be con- strued as repealing the original act." City and County of Sacramento v. Bird, 15 Cal. 295; Sedgwick on Stat, and Const. Law, p. 124 : also note to § 8, ante. "Whether consistent or not with the provisions of this code." See Perry v. Ames, 26 Cal. 382, where it is held that, "as all laws are presumed to be passed with delib- eration, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a stat- ute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irrec- oncilable." See also Bowen v. Lease, 5 Hill, 221, from which this language is quoted. In view of this decision, the language of the text was neces- sary repealing all former laws on the same sub- ject, whether consistent or not. § 19. This act, how cited, enumerated, etc. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as "The 1 Fair. — 2 §§ 20-22 PRELIMINARY PROVISIONS. 18 Code of Civil Procedure," adding, when necessary, the number of the sec- tion. Legislation § 19. Enacted March 11, 18T3. § 20. Judicial remedies defined. Judicial remedies are such as are ad- ministered by the courts of justice, or by judicial officers empowered for that purpose by the constitution and statutes of this state. force a right or redress an injury." Bouv. Law Diet. Tlie definition in the text is introduced as a concise and convenient definition of judicial remedies. Every original application to a court of justice for a judgment or order is a remedy. Belknap v. Waters, 11 N. Y. 478; Matter of Cooper, 22 N. Y. 87; 11 Abb. Pr. 329; 20 How. Pr. 8. These remedies are divided into two Legislation § 20. Enacted March 11, 1872. CODE COMMISSIONEES' NOTE. Introduced p<^ n rnncise and convenient definition of judicial remedies. Dei-nition of "remedy." "The action or means given by law for the recovery of a right." Tom- liu's Law Diet. "The means employed to en- § 21. Division of judicial remedies. classes : 1. Actions; and, 2. Special proceedings. Legislation § 21. Enacted March 11, 1873. CODE COMMISSIONERS' NOTE. In the Mat- ter of Dodd. 27 N. Y. 633, a special proceeding is said to be limited to a litigation in a court of justice. So, also, the same views are held in People V. Heath, 20 How. Pr. 307; People v. Board of Police, 39 N. Y. 506; affirming S. C, 40 Barb. 626; but see contra. People v. Board- man, 4 Keyes, 59; see People v. Commissioners of Highways, 27 How. Pr. 158, and cases there commented on; Wait's N. Y. Code, § 1. § 22. Action defined. An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or pro- tection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Legislation § 22. Enacted March 11, 18 73. Distinction between terms. An action, as distinguished from the suit in which it is enforced, is simply the right or power to enforce an "obligation," or "what is owed to the plaintiff"; the "action" springs from the "obligation" whicli it seeks to enforce, and the "cause of action" is sim- ply the "obligation," regardless of whether the action is ex contractu or ex delicto, or for compensation, or for damages, or for restitution, or in rem or in personam ; the "cause of action" is to be distinguished from the "remedy," which is simply the means by which the "obligation," or the corresponding action, is effectuated, and is also to be distinguished from the "relief" sought. Frost v. Witter, 132 Cal. 421; 84 Am. St. Rep. 53; 64 Pac. 705. Special proceedings. According to the course of the common law, probate mat- ters belonged to ecclesiastical jurisdiction; thus, a proceeding in probate is not an action at law, as defined by this section (Estate of Moore, 72 Cal. 335; 13 Pac. 880; McLeran v. Benton, 73 Cal. 329 ; 2 Am. St. Eep. 814; 14 Pac. 879); nor are proceed- ings in insolvency (In re Dennery, 89 Cal. 101; 26 Pac. 639); nor proceedings in emi- nent domain. John Heinlen Co. v. Supe- rior Court, 17 Cal. App. 660; 121 Pae. 293. CODE COMMISSIONERS' NOTE. An action is a lawful dpni.Tiid of a man's riL'ht — Co. l.itt., p. 285a, §492; Comyn's Digest, "Action"; Bank of Commerce v. Rutland etc. R. R. Co., 10 How. Pr. 9; see Mayhew v. Robinson, 10 How. Pr. 164. Any judicial proceeding which, if con- ducted to a termination, will result in a judg- ment, is an action. People v. County Judge of Rensselaer, 13 How. Pr. 400; see remarks of Justice Potter, in People v. Colborne, 20 Hov.'. Pr. 380. Not every judicial decision which ter- minates in a judgment constitutes an action. Coe V. Coe, 37 Barb. 233; 14 Abb. Pr. 88; see 2 Wait's Law and Practice, p. 40. What are actions. Under a similar provision in the New York code, it was held that a pro- ceeding supplementary to execution was not a special proceeding under the code, but a pro- ceeding in the action. Dresser v. Van Pelt, 15 How. Pr. 19; Seeley v. Black, 35 How. Pr. 369; Lawrence v. Farmer's L. & T. Co., 6 Duer, 689; Bank of Genesee v. Spencer, 15 How. Pr. 412. An order or decree having been made in an action, if a party to the action institutes pro- ceedings to enforce it, it is a proceeding in the action, and not a special proceeding. Pitt v. Davison, 37 N. Y. 235; 34 How. Pr. 374; 3 Abb. Pr. (N. S.) 405. Held otherwise, however, if proceeding be for punishment, as for contempt, of party disobeying order. See Holstein v. Rice. 24 How. Pr. 135; 15 Abb. Pr. 307; Forbes v. Wil- Inrd, 54 Barb. 520. Proceedings for partition of lands by summons and complaint are actions. Mvers v. Rasback, 2 Code R., p. 13; 4 How. Pr. 83; Backus v. Stihvell, 1 Code R., p. 70; 3 How. Pr. 318; contra, see Traver v. Traver, 3 How. Pr. 351; affirmed 3 How. Pr. 368: 1 Code R., p. 112; explained in Row v. Row, 4 How. Pr. 133. The following have been held actions: A proceeding to enforce mechanic's lien. People v. County Judge of Rensselaer, 13 How. Pr. 398. To com- pel a determination of claims relating to real prop- erty. Mann v. Provost, 3 Abb. Pr. 446. To ob- tain the remedy given by a writ of mandate whera return is made and issues joined. People v. Lewis, 28 How. Pr. 159; 28 How. Pr. 470; People V. Colborne, 20 How. Pr. 382. A pro- ceeding by the attorney-general to annul a patent granting lands. People v. Clarke, 11 Barb. 337; 9 N. Y. 349. 19 DEFINITIONS — DIVISION OF ACTIONS — CIVIL ACTIONS. §§23-25 What are not actions. A submission of a con- troversy under § li;i8, pest, of this code, would not be an action. See decision on a similar sec- tion of New York code, Lane v. Ilopke, 1 Duer, 701. Neither would an application to vacate a judpinent rendered upon confession. Belknap v. Waters, 11 N. Y. 477. Nor proceedings on the reference of claims against executors or adininis- trator.s. Coe v. Coe, .'!7 Barb. 232; 14 Abb. Pr. 8(i; Akely v. Akely, 17 How. Pr. 21. Nor a pro- ceeding to punish a party for contempt in dis- obeying order in proceedings supplementary to execution, llolsteiu v. Kice, 24 How. Pr. i35; Cray v. Cook, 15 Abb. Pr. 308; Forbes v. Willard, 54 Barb. 520. Nor an application for admission as attorney and an order denving it. Matter of Cooper, 22 N. Y. Rl ; Matter' of the Graduates, 20 How. Pr. 1; 11 Abb. Pr. 301. Nor a summary proceeding to remove tenant from ))ossession of demised premises. People v. Hamilton, 15 Abb. Pr. 328: 39 N. Y. 107; People v. Boardman. 4 Keyes, 59. Nor an application for injunction, which before answer is not an ordinary proceeding in the action. Becker v. Hager, 8 How. Pr. 68; see Wait's N. Y. Code, § 2. § 23. Special proceeding defined. Every other remedy is a special pro- ceeding. Special proceedings of a civil n.iture. See post, Part HI, §§ 10G3 et seq. Legislation S 23. Enacted March 11, 1873. Special proceedings. Any proceeding in a court, which, under the common-law and equity practice, was not either an action at Jaw or a suit in equity, is a special pro- ceeding, under this section. In re Central Irrigation District, 117 Cal. 3S2 ; 49 Pac. 354; Yuba County v. North America etc. Mining Co., 12 Cal. App. 223; 107 Pac. 139. Thus, a contest to revoke the probate of a will is a special proceeding (Estate of Joseph. 118 Cal. 660; 50 Pac. 76S); and so is a proceeding to determine heirship, un- der § 1664, post (Smith V. Westerfield, 88 Cal. 374; 26 Pac. 206; Estate of Burton, 93 Cal. 459; 29 Pac. 36; Estate of Blythe, 110 Cal. 226; 42 Pac. 641; Estate of Sutro, 143 Cal. 487; 77 Pac. 402), and an insol- vency proceeding (In re Dennery, 89 Cal. 101; 26 Pac. 639); and also an action to determine, upon reference by the surveyor- general, the right to purchase school-lands from the state (Eisdon v. Prewett, 8 Cal. App. 435; 97 Pac. 73), and an application for a writ of mandate (Jones v. Board of Police Commissioners, 141 Cal. 96; 74 Pac. 696) ; but the entry of judgment on an ap- peal bond, against the sureties thereon, is not a special proceeding. Hawley v. Gray Brothers etc. Co., 127 Cal. 560; 60 Pac. 437. In a special proceeding the court is limited by the terms and conditions of the statute under which such proceedings are authorized. Smith v. Westerfield, 88 Cal. 374; 26 Pac. 206. CODE COMMISSIONERS' NOTE. "What is a special pi-ocec'diiig / I'unishraent of contempts. See Holstein v. Kice, 24 How. Pr. 135; 15 Abb. I'r. 307 ; Forbes v. Willard, 54 Barb. 520; 37 How. Pr. 193. Mandamus a special proceeding. See I'eople V. Schoonmaker, 19 Barb. 658; but see People V. Lewis, 28 How. Pr. 159: Ct. of App., S. C, 28 How Pr. 470. Proceedings sup- plementary to execution have been held not to V)e special proceedings. Dresser v. Van Pelt, 'i Duer, 688; 15 How. Pr. 19. In the Matter of Dodd, 27 N. Y. 629, it was held that "to be a special proceeding in the sense of the New Y'ork code, there must be a litigation in a court of .ius- tice" ; but a difTerent opinion is entertained in People V. Commissioners of Highways, 27 How. Pr. 158; People v. Boardman, 4 Keyes, 59. Part III of this code treats of all such special proceedings as writs of mandate and prohibition. 5 § 106 i- 1110. Contesting elections. §§1111-1127. Summary proceedings. §§1132—1178. Enforce- ment of liens. §§ 1180-1206. Contempts. §§ 1209—1222. Voluntary dissolution of corpora- tions. §§ 1227-1233. Eminent domain (con- demnation of private property). §§1237—1263. Escheated estates. §§ 1269-1272. Change of names. §§ 1275-1278. Arbitrations. §§ 1281- 1290. Proceedings in probate courts. §§ 1298— 1346. Of sole traders. §§ 1811-1821. Proceed- ings in insolvency. § 1822. "Special cases" have been defined to be "special proceedings." characteristically differing from ordinary suits at common law, but embracing such matters as writs of quo warranto, mandamus, inquisitions of lunacy, and the like. People v. Day, 15 Cal. 91; Saunders v. Ifaynes, 13 Cal. 145; People v. Schoonmaker, 19 Barb. 657; Kundolf v. Thal- heimer, 12 N. Y. 593 ; see, however. Parsons v. Tuolumne Water Co., 5 Cal. 43; 63 Am. Dec. 76; and Brock v. Bruce, 5 C?il. 279. Proceedings for partition are special proceedings. Waterman V. Lawrence, 19 Cal. 218, 79 Am. Dec. 212. § 24. Division of actions. 1. Civil; and, 2. Criminal. Civil action, form of. See post, § 307. Criminal action. See post. § 31. Legislation § 24. Enacted March 11, 1872. Civil actions. A civil action is one aris- ing out of an obligation or an injury, whether it be at law or in equity. Ex Actions are of two kinds: parte Harker, 49 Cal. 465. Thus, a pro- ceeding for the arrest of a defendant in a civil action is civil, and not criminal. Ex parte Harker, 49 Cal. 465. Criminal actions. A criminal action is defined by § 6S3 of the Penal Code. § 25. Civil actions arise out of obligations or injuries. arises out of — 1. An obligation; 2. An injury. Legislation § 25. Enacted March 11, 1872, A civil action §§ 26-32 PRELIMINARY PROVISIONS. 20 § 26. Obligation defined. 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. Obligation, what is. See Civ. Code, §§ 142 7, The contract of the parties; or, 2. The operation 1428. of law." Legislation! 26 1. Enacted March 11. 1872, to ^xWd"a\"'at p'fes^e"„t ^"''" *«^^-^*' P" 2^^- and then read: An obligation is a legal duty, 3, r^ j ^^^ g^^j ^q^^ ^^g by which one person is bound to the performance stitutional. See note ante, § 5. ^ ' of an act towards another, and arises from: 1. =. 3 • §27. Division of injuries. An injury is of two kinds: 1. To the person ; and, 2. To property. Legislation g 27. 1, Enacted March 11, 1873. stitutional. See note ante, § 5. 2. Repeal by Stats. 1901, p. 118; uncon- § 28. Injuries to property. An injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, de- teriorating, or destroying it. Legislation § 28. 1. Enacted March 11, 1872. stitutional. See note ante, § 5. 2. Repeal by Stats. 1901, p. 118; uncon- § 29. Injuries to the person. Every other injury is an injury to the per- son. Legislation § 29. 1. Enacted March 11, 1872. stitutional. See note ante, § 5. 2. Repeal by Stats. 1901, p. 118; uncon- § 30. Civil action, by whom prosecuted. A civil action is prosecuted by one party against another for the enforcement or protection of a right, or the redress or prevention of a wrong. Forms of action. See post, § 307. of a lien does not depend upon possession, Legislation § 30. 1. Enacted March 11, 1872. it may be assicrned, and the assignment of 2. Repeal by Stats. 1901, p. 118; uncon- the claim carries with it the right to the stitutional. See note ante, § 5. j-^^ ^g ^^ incident. Duncan V. Hawn, 104 Assignment of lien. Where the existence Cal. 14; 37 Pac. 626. § 31. Criminal actions. The Penal Code defines and provides for the prosecution of a criminal action. Criminal action, defined. See Pen. Code, §683. 2. Repeal by Stats. 1901, p. 118; uncon- T ■ 1 I.- oof <-o ij-»T vii< orvr. stitutional. See note ante, § 5.. Legislation § 31. 1. Enacted March 11, 1872. ^ §32. Civil and criminal remedies not merged. "When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. Legislation § 32. Enacted March 11, 1872. pended until the conviction of the offender. ^^T.^ /^/^T.»i.«-rc.c.T/%-vrrn-r.c.. xTr.m-r. /r •, Gordon V. Hostetter, 37 N. Y. 99; 4 Abb. Pr. CODE COMMISSIONERS' NOTE. Civil reme- rx. S) 2 6:^: 4 Trans. App. 375; Wait's Ann. dies are not merged in felonies, nor are they sus- jj_ y_ Code § 7. PART I. COURTS OF JUSTICE. Title I. Organization and Jurisdiction. §§ 33-153. II. Judicial Officers. §§ 156-188. III. Persons Specially Invested with Powers of a Judicial Nature. §§ 190-259. IV. Ministerial Officers of Courts of Justice. §§ 262-274. V. Persons Specially Invested with ]\Iinisterial Powers Relating to Courts op Justice. §§ 275-304. Legislation Part I. (Titles I-V, §§ 33-304.) substituting a new Part One to take the place 1. Enacted March 11, 1S72. thereof in said Code, relating to Courts of Jus- 2. Amended by Code Amdts. 1880, p. 21, tice, and various officers connected therewith." by "An Act to amend Part One of the Code of This act was declared unconstitutioual, iu People Civil Procedure, and each and every title, chap- v. Ransom, 58 Cal. 558. ter, article, and section of said Part One, and (21) 23 COURTS OF JUSTICE IN GENERAL. §33 TITLE I. ORGANIZATION AND JURISDICTION. Chapter I. Courts of Justice in General. §§33.34. II. Court of Impeachment. §§ 35-39. III. Supreme Court. §§ 40-G4. IV. Superior Courts. §§ 65-79. V. Justices' Courts. §§ 82-119. Article I. Justices' Courts in Cities and Counties. §§ 85-100. II. Justices' Courts in Townships. §§ 103-109. III. Justices of the Peace and Justices' Courts in Genoral. §§ 110-119. VI. Police Courts. § 121. VII. General Provisions respecting Courts of Justice. §§ 124-153, Article I. Publicity of Proceedings. §§ 124, 125. II. Incidental Powers and Duties of Courts. §§ 128-131. III. Judicial Days. §§ 133-135. IV. Proceedings in Case of Absence of .Tudge. §§ 139, 140. V. Provisions respecting Places of Holding Courts. §§ 142-144. VI. Seals of Courts. §§147-153. CHAPTER I. COURTS OF JUSTICE IN GENERAL, § .3.^. Courts of justice in general. § 34. Courts of record. § 33. Courts of justice in general. The following are the courts of jus- tice of this state : 1. The court of impeachments; 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 incorporated city or town, or city and county. sixth subdivision of that act, which reads "Re- corders' and other inforioi- municipal courts." 1. Jurisdiction of courts in general. The first point decided by any court, although it may not he in terms, is that the court has jurisdiction. Clary v. Hoagland, 6 Cal. 688. 2. Void judgment if jurisdiction be wanting. The judgment of any court is void where there is a want of jurisdiction. Hahn v. Kelly, 34 Cal. 402; 94 Am. Dec. 742. 3. Jurisdiction of courts before adoption of constitutional amendments. Efiect of amend- ments to constitution on jurisdiction of the courts existing prior to their adoption. See Gillis v. Barnelt, 38 Cal. 393. And as to jurisdiction of courts existing prior to adoption of constitution, in 1849. and intendments in favor of their judg- ments, see Ryder v. Cohn, 37 Cal. 69. 4. "Amount in controversy." The "amount in controversy" means the sum claimed in the com- plaint or declaration, so far as relates to the jurisdiction of the court. Costs of suit, etc., are mere incidents, not controlling the jurisdiction; so a judgment may be for more than the "amount in controversy" and not affect the matter of jurisdiction. Bradley v. Kent, 22 Cal. 169. 5. Jurisdiction by certiorari. The jurisdiction of a court by certiorari (writ of review) does not depend upon the amount in controversy (over- ruling People V. Carman. 18 Cal. 693). Winter V. Fitzpatriok. 3.5 Cal. 273. 6. Common-law jurisdiction. The phrase, "courts having common-law jurisdiction." dis- cussed and defined in Matter of Conner, 39 Cal. 98: 2 Am. Rep. 427. 7. Inquiry by one court Into Jurisdiction of another. The power of a court of law to inquire into the jurisdiction of a court of original juris- Judicial department. See Const., arts. Ill, VI. Subd. 5. See Const., art. VI, § 13. Jurisdiction of above courts considered, post, in the various chapters treating thereof. Court of impeachment. See post, §§36 et seq. Supreme court. See post, §S4U et sf District courts of appeal. See Stats. 1903, p. 737. Superior courts. See post, §§ 6.5 et seq. Justices' courts. See post, §§ 85 et seq. Police courts. See post, § 121. Legislation § 33. 1. Enacted March 11, 1873 (based on Stats. 1863, p. 333), and then read: "The following are the courts of justice of this state: 1. The court for the trial of impeach- ments; 2. The supreme court; 3. The district courts; 4. The county courts; 5. The probate courts; 6. The municipal criminal court of San Francisco; 7. The justices' courts; 8. The police courts." 2. Amended by Code Amdts. 1880, p. 21. 3, Repeal by Stats. 1901, p. 118; unconstitu- tional. See note ante, § 5. Juvenile court. The Juvenile Court Law of 1911 is constitutional. Moore v. Wil- liams. 19 Cal. App. 600; 127 Pac. 509. Police court. A police judge, though a judicial othcer, is also a municipal otiicer. People V. Henry, 62 Cal. 557. CODE COMMISSIONERS' NOTE. Based upon act of 1863 (Stats. 1863, p. 333), with the court for the trial of impeachments and the municipal criminal court of San Francisco added, and "police courts" substituted in the place of the 33 COURTS OF JUSTICE IN GENERAL. 24 diction by which the judgment was rendered is fully recognized, but the inquiry is limited to an inspection of the record, and if it does not appear affirmatively upon the face of the record that the court had no jurisdiction, the impeachment, for all purposes of a defense to the action at law, has failed. The jurisdiction in courts of original ju- risdiction need not appear affirmatively upon the face of the record, the presumption thereof com- ing to the aid of the record. Carpentier v. City of Oakland, 30 Cal. 439. 8. Presumption in favor of jurisdiction. It is presumed (where judgment is rendered by a court of original jurisdiction) that the court had juris- diction over the person of the defendant, unless the contrary affirmatively appears in the record. Sharp v. Daugney, 33 Cal. 507. 9. When jurisdiction presumed in courts of record. As to courts of record, all intendments are in favor of the regularity of their proceed- ings. People V. Blackwell, 27 Cal. 65; Hahn v. Kelly, 3-4 Cal. 391; 94 Am. Dec. 742; Barrett V. Carney, 33 Cal. 530; Quivev v. Porter, 37 Cal. 458; People v. Connor, 17 Cal. 361; People V. Hobson, 17 Cal. 424; People v. Robinson, 17 Cal. 368; People r. Lawrence, 21 Cal. 372. See generally Ryder v. Cohn. 37 Cal. 69. 10. Want of jurisdiction, how taken advantage of. In courts of general jurisdiction, the cause of action need only to be stated, and the want of jurisdiction arising from the insufficient value of the subject-matter in dispute must be taken advantage of in some other way. Doll v. Feller, 16 Cal. 432. In a court of limited and special jurisdiction, every fact essential to confer juris- diction must be alleged. But the rule is other- wise in courts of general jurisdiction. A de- murrer to their jurisdiction only lies where the want of such jurisdiction appears affirmatively upon the face of the complaint. 11. Jurisdiction not presumed in courts not of record. The jurisdiction of courts not of record being special and limited, the law presumes noth- ing in favor of their jurisdiction, and a party who asserts a right under a judgment rendered in such a court must show affirmatively every fact necessary to confer such jurisdiction. Row- ley V. Howard, 23 Cal. 401; Swain v. Chase, 12 Cal. 283: Whitwell v. Barbier, 7 Cal. 54; Lowe v. Alexander, 15 Cal. 296; King v. Randlet, 33 Cal. 318; Jolley v. Foltz, 34 Cal. 321. 12. Meaning of "within the jurisdiction of the court." By the phrase "within the jurisdiction of the court" is meant "within the state," so far as to the necessity of producing a subscrib- ing witness or accounting for an omission so to do. Stevens v. Irwin, 12 Cal. 306. 13. Appeals from state to Federal courts; transfer of causes; conflicts of jurisdiction; ad- miralty and maritime cases, etc. As to appeals from state courts to the supreme court of the United States, when allowed, how taken, etc., see Ferris v. Coover, 11 Cal. 175; Hart v. Burnett, 20 Cal. 171; Greely v. Townsend, 25 Cal. 610. It was held that no cause can be transferred from a state court to any court of the United States. The Federal and state courts have in some cases concurrent jurisdiction, but the court which first has possession of the subject must decide it. Neither a writ of error nor appeal lies to take a case from a state court to the supreme court of the United States. An appeal is allowed when the decision of the state court is adveise to a law of Congress, treaty, etc. Johnson v. Gordon, 4 Cal. 368. See this case reviewed in Warner v. Steamship Uncle Sam, 9 Cal. 697, and finally overruled, in most particu- lars, in Greely v. Townsend, 25 Cal. 613; see also Martin v. Hunter's Lessees, 1 Wheat. 304. 372; 4 L. Ed. 97, 113; Cohen v. Virginia, 6 Wheat. 264; Waring v. Clark, 5 How. 461; 12 L. Ed. 237. As to jurisdiction and removal of cause between state and Federal courts, see Cal- derwood v. Hager, 20 Cal. 167; Hart v. Burnett, 20 Cal. 169. The judge of the United States district court for the district of Oregon has not jurisdiction, while holding the circuit court of the United States for the district of California, to issue a citation on a writ of error from the supreme court of the United States to the su- preme court of this state. He has not juris- diction either to take or approve security re- quired in order to make the writ of error a supersedeas, etc. The citation and security taken would not operate as a supersedeas in such a case. Tompkins v. Mahoney, 32 Cal. 240. The .jurisdiction of the courts of the United States in admiralty and maritime causes is not exclusive; the states have power to confer upon their courts all admiralty and maritime jurisdic- tion. Congress has not power to make this juris- diction exclusive in the Federal courts. State and Federal courts have in these cases concurrent original jurisdiction. Johnson v. Gordon, 4 Cal. 368; see, however, Greely v. Townsend, 25 Cal. 613, overruling this case; Taylor v. Steamer Columbia, 5 Cal. 268; Warner v. Steamship Uncle Sam, 9 Cal. 697; Ord v. Steamer Uncle Sam, 13 Cal. 369; and see The Moses Taylor, 4 Wall. (U. S.) 411; 18 L. Ed. 397; The Hine v. Trevor, 4 AVall. (U. S.) 556; 18 L. Ed. 451. See par- ticularly Appendix Pol. Code, vol. 2, p. 344, note to art. Ill, § 2, Federal Constitution. 14. Actions against steamers and vessels. The provisions of the code, §§ 813—827, post, pro- viding for actions against steamers, vessels, and boats, confers upon the district court admiralty jurisdiction pro tanto. The rule in regard to action in rem, in both admiralty and common-law courts, gives exclusive jurisdiction in a given case to that tribunal which has acquired it by a judicial seizure of the thing, and such seizure has always been essential to a proceeding in rem. But our statute alters the rule. It makes the service of the process upon a person standing in a particular relation to the thing equivalent to its seizure for the purpose of conferring juris- diction ; and it necessarily follows that jurisdic- tion in rem may exist in several courts at the same time. The court, however, whose mesne or final process has first made actual seizure must have exclusive power over its disposal and the distribution of the funds arising therefrom. The judgments of other courts, if filed in the court having custody of the fund, are complete adjudi- cations of the subject-matter of litigation which they disclose, and entitled to distribution accord- ing to their respective merits. Averill v. The Hartford, 2 Cal. 308; but see The Moses Tavlor. 4 Wall. (U. S.) 411; 18 L. Ed. 397; TTie Hine V. Trevor, 4 Wall. 556; 18 L. Ed. 451; see Ap- pendix Pol. Code, vol. 2, p. 344, note to art. Ill, § 2. Federal Constitution. 15. Admiralty cases. A cause of action, to be cognizable in admiralty, whether arising out of a contract, claim, service, or obligation or lia- bility of any kind, must relate to the business of co.-nmerce and navigation. People v. Steamer America, 34 Cal. 679; see also this case for the manner of raising in the state courts the issue of jurisdiction as to whether the action is within maritime jurisdiction. 16. Maritime causes. In a case clearly arising on questions belonging to admiralty and mari- time transactions, it has been intimated that a sttte court might hold its jurisdiction where the people of the state were plaintiffs, and the action was for the collection of state revenues. See People v. Steamer America, 34 Cal. 681. 17. Suits between citizens and foreigners. United States courts have no jurisdiction over suits between alien and alien, but are confined to actions between citizens and foreigners (Moss- man V. Higginson, 4 Dall. 12; 1 L. Ed. 720; Montalet v. Murray, 4 Cranch, 46 ; 2 L. Ed. 545; Hodgson V. Bowerbank. 5 Cranch, 303; 3 L. Ed. 108; Jackson v. Twontyman, 2 Pet. 136; 7 L. Ed. 374) ; and where bvith parties to a suit are aliens, the action cannot be on that account transferred from a state to a Federal court. Orosco v. Gagliardo, 22 Cal. 83. 18. When state courts have jurisdiction over foreign seamen, etc. When a foreign master of a foreign vessel discharges a foreign seaman for no wrongful act. the seaman may maintain an action for his wages in a state court. All per- sons in time of peace (in such matters as these) have the right to resort to the tribunals of the 25 COURTS OF JUSTICE IN GENEILVL. §33 nation where they may happen to be, for the pro- tection of their riffhts. The jurisdiction of courts over them is cmnijlete, except where it is ex- cluded by treaty. Pugh v. (iilUim, 1 t'al. 4Ho ; The Jerusalem. 2 Gall. 191; Fed. C'as. No. 7293; Moran v. baudin, 2 Pet. Adni. Decis. 415; Fed. Cas. \j. 97f>5. 19. State courts no jurisdiction over crimes against United States. The state tribunals have no jurisdiction to punish crimes against the laws of the United States, as such. But the same act may be an oll'ense tigaiiisl both the laws of the United States and of this state. People v. Kelly, 38 Cal. 145; 99 Am. Dec. 3U0. State tribunals have no jurisdiction to punish perjury against the United States. State v. Adams, 4 Blackf. 14(j; State v. Pike, 15 N. H. 83; People V. Kelly, 38 Cal. 145; 99 Am. Dec. 300. 20. Jurisdiction of state courts over action of United States land department. It has been questioned whether the cuurts of California have jurisdiction to review the action of the United States land department upon contests of rights of preemption wlien the subject-matter of the investigation, and upon which the preference de- pended, were not transactions which occurred in the contest, but before it. Quinn v. Kenyon, 38 Cal. 499. 21. Trespass committed by United States offi- cer. The fact that a trespass was committed by a marshal of the United States, or by a deputy, under cover of his office, does not deprive the district court of jurisdiction over the same. Hirsch v. Hand, 39 Cal. 315. 22. Jurisdiction of one court cannot encroach upon that of another. Each branch of the judi- cial department has its functions assigned by the constitution. The sixth article of the constitu- tion seems to have been drawn with great skill and care, and endeavors to establish a complete judicial system. It not only provides for the establishment of the several judicial tribunals, but also distributes among these tribunals their several powers. It would derange our judicial system if the legislature could confer on one court the functions and powers which the con- stitution has conferred on another. Zander v. Coe, 5 Cal. 230. 23. Courts of concurrent jurisdiction cannot interfere with, each other's actions. One court has no power to interfere with the judgments and decrees of another court of concurrent juris- diction. The only case in which it will be allowed is where the court in which the action or proceeding is pending is unable, by reason of its jurisdiction, to afford the relief sought. Anthony v. Dunlap, 8 Cal. 26; Rickett v. John- son, 8 Cal. 34: Chipman v. Hibbard, 8 Cal. 263; Phelan v. Smith, 8 Cal. 520; Uhlfelder v. Levy, 9 Cal. 607; see also Gorham v. Toomey, 9 Cal. 77. Nor does it make any difference if, in a suit in equity, new parties are brought in strangers to the action at law sought to be enjoined. Uhlfelder v. Levy, 9 Cal. 607. There are exceptions to the general rule, however, as, for instance, the same fraudulent debtor might confess different fraudulent judgments in dif- ferent judicial districts. It would not then be necessary for creditors to bring a different suit in each different court. So, also, where the code requires the action to be tried in a particular county, it must be brought there. Uhlfelder v. Levy, 9 Cal. 607. Compare this case with Hey- neman v. Dannenberg. 6 Cal. 376; 65 Am. Dec. 519. Nor can a statf court enjoin the proceed- ings of a Federal court. Phelan v. Smith, 8 Cal. 520. 24. When court has jurisdiction by mandamus. If a court entertained jurisdictinn of the acticin, its proceedings, however erroneous they may have been, could not have been reviewed in pro- ceedings for a mandamus. People v. Pratt, 28 Cal. 166; 87 Am. Dec. 110; Cariaga v. Dryden, 29 Cal. 307. But if the court refused to act in the case, the question whether it rightfully so refused mav be entertained in this proceeding. Beguhl v. Swan, 39 Cal. 411. Where the dis- tiict court has ordered a cause commenced therein to be transferred to the United States circuit court, the supreme court has no jurisdic- tion to issue a writ of mandate to comnel the district judge to proceed with the trial of the cause. Francisco v. Manhuttaa Ins. Co., 36 Cal. 283. 25. When by certiorari. A writ of certiorari will not lie to an inferior court to annul an order which is merely erroneous, but not void in a matter of which such court has acquired juris- diction. Peojile V. KIkins, 4u Cal. 647. 26. Jurisdiction in injunction proceedings. It is well settled that under our judicial system one court has no jurisdiction to enjoin the exe- cution of a decree of another court of co-ordinate jurisdiction, unless it plainly appear that the court rendering the judgment or decree under which proceedings are sought to be stayed "is unable by reason of its jurisdiction to afford the reliei sought." Anthony v. Dunlap, 8 Cal. 27; Rickett v. Johnson, 8 Cal. 35; Chijiman v. Hibbard, 8 Cal. 270; Gorham v. Toomey, 9 Cal. 77; Uhlfelder v. Levy, 9 Cal. 614; Hockstacker V. Levy, 11 Cal. 76; Grant v. Quick, 5 Sandf. 612. The fact that parties to an injunction pro- ceeding are not the same as the parties to the judgment or decree sought to be enjoined does not relieve tlie case from the operation of this rule, nor can the consent of the parties change the rule. It is established and enforced not so much to protect the rights of the parties as to protect the rights of the courts of co-ordinate jurisdiction, to avoid conflict of jurisdiction, con- fusion, and delay in the administration of jus- tice. Revalk v. Kraemer, 8 Cal. 71; 68 Am. Dec. 304. Proceedings for such purpose should ahvays be commenced in the court rendering the judgment or decree and having control of its execution. Crowley v. Davis, 37 Cal. 268. 27. Jurisdiction in injunction proceedings. A court has jurisdiction to issue a restraining order when at the time of issuance there was a suit pending between the parties. Prader v. Purkett, 13 Cal. 588. 28. Explanation of exclusive and concurrent jurisdiction. Their effect. There is nothing in the nature of jurisdiction as applied to courts which renders it exclusive. It is not like a grant of property which cannot have several owners at the same time. It is a matter of common ex- perience that two or more courts may have con- current powers over the same parties and the same subject-matter. Jurisdiction is not a right or privilege belonging to the judge, but an au- thority or power to do justice in a given case, when it is brought before him. There is no in- stance in the whole history of the law where the mere grant of jurisdiction to a particular court without any words of exclusion has been held to oust any other court of the powers which it before possessed. Creating a new forum with concurrent jurisdiction may have the effect of withdrawing from the courts which before existed a portion of the cause which would otherwise have been brought before them, but it cannot affect the power of the old courts to administer justice when it is demanded at their hands. Courtwright v. Bear River etc. Mining Co., 30 Cal. 580; quoting from Delafield v. State of Illinois, 2 Hill, 164. 29. Exclusive jurisdiction. Where a new right is provided by law, together with a particular remedy for its violation, and the statute pre- scribes that the remedy must be pursued in a certain court, the jurisdiction on that subject is exclusive in such court. Reed v. Omnibus R. R. Co., 33 Cal. 212. 30. Concurrent jurisdiction. Where the con- stitution grants original jurisdiction of a par- ticular class of cases to one court, without expressly excluding other courts from exercising any jurisdiction therein, those other courts are not for that reason necessarily excluded from exercising concurrent jurisdiction in the same class of cases. Courtwright v. Bear River etc. Mining Co., 30 Cal. 580 (commenting on and in some particulars overruling Zander v. Coe, 5 Cal. 230; Caulfield v. Stevens, 28 Cal. 118: while the case of Perry v. Ames, 26 Cal. 383; Conant V. Conant, 10 Cal. 249; 70 Am. Dec. 717, in matters of concurrent jurisdiction, etc., are ap- proved). 31. Concurrent Jurisdiction of equity and law courts. Where courts of law and equity have §33 COURTS OF JUSTICE IN GENERAL. 26 concurrent jurisdiction, if a court of law has first acquired jurisdiction and decided a case, a court of equity will not interfere to set aside thie judg- ment, unless the party has been prevented by some fraud or accident from availing himself of the defense at law. Dutil v. Pacheco, 21 Cal. 43S; 82 Am. Dec. 749: Truly v. Wanzer, 5 How. (U. S.) 141; 12 L. Ed. 88; Allen v. Hopson, 1 Freem. (Miss.) 276; Norton v. Wood, 22 Wend. 524; Smith v. Wclver, 9 Wheat. 532, 6 L. Ed. 152; Haden v. Garden, 7 Leigh (Va.), 157. 32. Equity and law jurisdiction over fraud. A court of equity will take jurisdiction in cases of fraud, even if founded on the express pro- visions of statutes, and especially to guard against the fraudulent acts of a debtor. Heyne- man v. Dannenberg, 6 Cal. 376; 65 Am. Dec. 519; Adams v. Woods, 8 Cal. 156; 68 Am. Dec. 313. Equity exercises concurrent jurisdiction with courts of law in questions involving fraud, accident, or confidence, and there are cases where, even though an action at law might be main- tained, yet a bill in equity is equally proper. See New York Ins. Co. v. Roulet, 24 Wend. 505; Story Eq., p 64; People v. Houghtaling, 7 Cal. 348. 33. Equity jurisdiction, specific performance, etc. The ground of the interference of chancery in bills quia timet, and to enforce the specific execution of an agreement, is that there is no other adequate remedy. If a plain, speedy, un- embarrassed remedy exists at law, equity will not interfere. As a general rule, equity will not interfere in cases sounding in damages. But there are exceptions to this rule. See Buxton v. Lister, 3 Atk. 384; Adderley v. Dixon, 1 Sim. & S. 607. In these exceptional cases, the jurisdiction is put on the ground that compensation in damages would not afford a full, complete, and satisfactory remedy, and it is denied when this is attainable at law. The jurisdiction attaches also in cases of apprehended injury, as by sureties, etc., where no loss has as yet followed. 2 Story Eq., p. 35. It has been held that in cases of a general cove- nant to indemnify, although sounding in dam- ages, equity will decree specific performance. See Ranelaugh v. Hayes, 1 Vern. 189; Champion V. Brown, 6 Johns. Ch. 398; Chamberlain v. Blue. 6 Blackf. (Ind.) 491; White v. Fratt, 13 Cal. 521. But equity will not assume jurisdiction where a remedy at law exists, and compel the Kurrender or cancellation, or enjoin the collec- tion of a promissory note or other instrument. Smith V. Sparrow, 13 Cal. 596, affirming Lewis V. Tobias, 10 Cal. 574. See authorities cited in last-named case. 34. Equity jurisdiction over judgments fraudu- lently altered, etc. When a judgment was ren- dered, and afterward fraudulently altered so as to include a new party not in the first instance included in the judgment, and who had never been served with process, equity has jurisdiction of the case, and may vacate the judgment. (The remedy by appeal might suffice in ordinary cases where there was a want of service. See facts of case.) It made no difference that the judg- ment was void on its face, as the party wr.s liable to be harassed by it and it was about to be enforced against him. Chester v. Miller, 13 Cal. 558. 35. Equity jurisdiction complete between part- nership and individual creditors. A court of equity has jurisdiction in cases where there is a conflict between partnership and individual creditors. Conrov v. Woods. 13 Cal. 626; 73 Am. Dec. 605; Place v. Sweetzer. 16 Ohio, 142; Washburn v. Bank of Bellows Falls, 19 Vt. 278- 286. 36. Equity jurisdiction to decree execution of deed, etc. Juri<;diction of a court of equity, to decree a re-execution of a deed, is unquestion- able. The jurisdiction is maintained in such cases where the destruction would create a defect in the deraignment of the party's title and thus embarrass the assertion of his rights to the prop- erty. Cummings v. Coe, 10 Cal. 529. 37. Equity jurisdiction to decree alimony. A court of equity has jurisdiction to decree alimony in an action which has no reference to a divorce or separation. Galland v. Galland, 38 Cal. 265,- see dissenting opin'on in same case. 38. Jurisdiction of court over Infants In parti- tion suits. Ibe proceeding for partition is a special proceeding, and the statute prescribes its course and effect; and though after jurisdiction has attached errors in the course of the cause cannot be collaterally shown to impeach a judg- ment, yet, so far at least as the rights of infants are involved, the court has no jurisdiction, ex- cept over the matter of partition, and has no power to render a decree divesting an infant's estate, not for the purpose of partition, but upon an adverse claim by other parties. Waterman v. Lawrence, 19 Cal. 210; 79 Am. Dec. 212. 39. Jurisdiction of courts over fugitives from Justice from other states. A court of general original jurisdiction, exercising the usual powers of a common-law court, has jurisdiction to hear and determine all matters, and to issue all neces- sary writs for the arrest and transfer of a fugi- tive criminal to the authorized agent of the state from whence he fled. Whore a right is estab- lished by law, such courts can apply the appro- priate remedy and issue the necessary writs without special legislation. Matter of Romaine, 23 Cal. 585. 40. Jurisdiction to review judgment on appeal lost, if appeal is not taken in time. If a court has jurisdiction to review a judgment on an ap- peal taken within one year after rendition of the same, yet that jurisdiction is lost at the expiration of the year. Haight v. Gay, 8 Cal. 297, 68 Am. Dec. 323; affirmed in Milliken v. Huber, 21 Cal. 166. 41. Effect of adjournment of court for term on its jurisdiction of cases pending and decided. A court does not lose jurisdiction by adjournment before the case has been finally determined; and the court may vacate a default if final judg- ment has not been entered, even though the court has adjourned for the term. Wilson v. Cleave- land, 30 Cal. 193 (and De Castro v. Richardson, 25 Cal. 49, and Willson v. McEvoy, 25 Cal. 169, were held not to be inconsistent with this rul- ing). In a proceeding to condemn land the dis- trict court did not lose its power or control over the case by reason of its adjournments at any time. It was unfinished business, and necessarily continued in court until the deed was made and the money paid over under the order of the court. Stanford v. Worn, 27 Cal. 174. 42. Jurisdiction of courts over cases decided is lost by adjournment for the term. After the adjournment of the term the court loses all con- trol over cases decided, unless its jurisdiction is saved by some motion or proceeding at the time, except in the single case provided by statute, where the summons has not been served, in which the party is allowed six months to move to set the judgment aside (Suvdam v. Pitcher, 4 Cal. 280; Robb v. Robb. 6 Cal. 21; Morrison v. Dapman, 3 Cal. 255; Shaw v. Mc- Gregor, 8 Cal. 521: Bell v. Thompson, 19 Cal. 706; Lattimer v. Ryan, 20 Cal. 632); but the court has power to make an order ntinc wro tunc, or to correct a mere clerical error. Swain v. Naglee, 19 Cal. 127; De Castro v. Richardson, 25 Cal. 49: see Willson v. McEvoy, 25 Cal. 169. 43. Where general jurisdiction exists, court has full jurisdiction in all particulars of the case. When a court has general jurisdiction of a sub- ject it has power to make a full disposition of the matter and conclude litigation respecting it. Kennedy v. Hammer. 19 Cal. 387. 44. Jurisdiction cannot be conferred by agree- ment of parties. A stipulation by parties waiv- ing all objections to_ jurisdiction cannot confer on a district court jurisdiction to try a cause in one county, when by operation of law the court is adjourned in that county and its term commenced in another. Bates v. Gage. 40 Cal. 184: Smith v. Chichester, 1 Cal. 409; Domingues V. Domingues, 4 Cal. 186; Norwood v. Kenfield, 34 Cal. 329. To sustain a personal judgment the court must have jurisdiction of the subject- matter and of the person. Where the jurisdic- tion of the court, as to the subject-matter, has been limited by the constitution or by statute, the consent of parties cannot confer jurisdiction. But when the limit regards certain nersons, they may, if competent, waive their privilege, and. this will give the court jurisdiction. If, how- 27 COURTS OF RECORD. §34 ever, a party has not been brought into court, and docs not of liinisi'll' eoiuo ii\ luul waive tlio necessity of service, tlie court lias no jurisdic- tion over him. Gray v. ilawes, 8 Cat. o(>2. There is in tliese cases, iiowever, a decided dis- tinction between want of jurisdiction and iinnu- larity in procuring jurisdiction. Whitwell v. Barbier, 7 C;il. (i'S. 45. Jurisdiction cannot be divested by agree- ment of parties. Tlie agreements of parlies can- not divest tile courts of law or eciuity of their proper jurisdiction. Muldrow v. Korris, 2 t'al. 74; 5G Am. J)ec. 313. The consent of jiarlies cannot niter the jurisdiction of courts. liiddle Boggs V. ilerecd Mining Co., 14 Cal. 279. Nor can liny stipulation made by them affect their jurisdiction. Keed v. iiernal, 40 Cul. 628. 46. Jurisdiction by publication of summons. The statutory provisions for acquiring jurisdiction of the person of the defendant, by publication of the summons instead of a personal service, must be strictly pursued. People v. Huber, 20 Cal. 81; Jordan v. Giblin, 12 Cal. 100; Evertson V. Thomas, 5 How. Pr. 45; Kendall v. Washburn, 14 How. Pr. ;;so. 47. Jurisdiction in cases of publication, notice, summons, etc. Stanford v. AVorn, 27 Cal. 174; Steinbach v. Lesse, 27 Cal. 295; McMinn v. Whelan, 27 Cal. 300; Braly v. Seaman, 30 Cal. (jlO; Sharp v. Uaugnev, 33 Cal. 507; Townsend V. Tallant, 33 Cal. 45; 91 Am. Dec. G17; Hahn v. Kellv, 34 Cal. 391; 94 Am. Dec. 742; Quivev v. Porter. 37 Cal. 458; McDonald v. Katz, 31 Cal. 169; Forbes v. Hyde, 31 Cal. 342; Eitel v. Poote, 39 Cal. 439; see post, §§ 1010-1017, inclusive. 48. Jurisdiction by appearance of party in court. A court has jurisdiction of the person where he voluntarily put in an appearance with- out the issuance of summons. Hayes v. Shat- tuck, 21 Cal. 51. 49. Jurisdiction of the person by appearance in an action. What is an appearance? See post, § 1014; Steinbach v. Lesse, 27 Cal. 295; Seale v. McLaughlin, 28 Cal. 668; see post, § 406. 50. Jurisdiction by ad:nission of service. See Sharp v. liruiinings, 35 Cal. 528. 51. Jurisdiction over persons appearing by at- torney. Court acquires jurisdiction only of those for whom the attorney finally appears. Forbes v. Hyde, 31 Cal. 342. 52. Jurisdiction of special cases. Actions to abate nuisance. The constitution permits the legislature to confer on county courts ,jurisdic- tion in "special cases" ; but the term "special cases" was not meant to include any class of cases for which the courts of general jurisdic- tion had always supplied a remedy. The special cases, therefore, must be confined to such new cases as are the creation of statutes and the proceedings under which are unknown to the general framework of courts of common law and equity. The action to prevent or abate nui- sances is not one of these, and is amply pro- vided for in courts of general jurisdiction. In conferring this power upon county courts, the legislature exceeded its constitutional authority, and the portion of the act which contains it is invalid. Parsons v. Tuolumne County Water Co., 5 Cal. 43: 63 Am. Dec. 76; see, however. People V. Day, 15 Cal. 91. 53. Jurisdiction of inferior courts. Inferior courts cannot go beyond the authority conferred upon them by the statute under which they act. Winter v. Fitzpatriek, 35 Cal. 273. 54. Jurisdiction of courts of executive of the state by writ of mandate, etc. Courts having jurisdiction of writ of mandamus may issue such a writ to the governor to compel certain minis- terial acts. Harpending v. Haight, 39 Cal. 189: 2 Am. Rep. 432 (Temple, J., dissenting in an elaborate opinion). Under the distribution of § 34. Courts of record. The courts emimerated in the first three sub- divisions of the last preceding section are courts of record. Courts of record. See Const., art. VI, § 12. powers by the constitution the judiciary are not denied jurisdiction in cases where a fugitive from justice from another stale is held in custody b.v virtue of a warrant issued by the executive of this state. The very object of tne halieas corpus was to reach just such cases, and while the courts of the state possess no power to control the executive discretion and compel a surrender, yet he having once acted, that discretion may be examined into in every case where the liberty oj the subject is involved. Ex parte Manchester, 5 Cal. 237. 55. Jurisdiction of courts to inquire into legis- lative proceedings, constitutionality of laws, etc ]\lany provisions of the constitution are addressed solely to the legislative department, and it may be said that Jill those provisions which require the legislature to do certain things, leaving the means and manner within the legislative discre- tion, are entirely beyond the reach of the judi- ciary, whose functions are wholly different from those of the law-making power. Some of the restrictions upon the powers of that body are addressed solely to the legislature. As an in- stance, I may mention those provisions relating to the qualifications, elections, and returns of its own members; and although the constitution ex- pressly requires certain qualifications to consti- tute a member of either house, yet each house is expressly constituted the exclusive judge of those questions, and this court could not. in any manner, review such a decision. The true rule seems to be this: that when the right to deter- mine the extent and effect of the restriction is either expressly or by necessary implication con- fided to the legislature, then the judiciary has no right to interfere with the legislative con- struction, but must take it to be correct. But in all other cases or restriction it is the right and duty of this court to decide the effect and extent of the restriction in the last resort. And as to the question whether the right to deter- mine the extent and effect of the restriction is vested in the legislature or in the judiciary, this court must equally determine in the last resort. Kougues V. Douglass, 7 Cal. 65; see also Ex parte Shrader, 33 Cal. 279. But a court cannot review the act of the legislature upon a question whether or not a certain enterprise (such as a railroad) is a public benefit or use. The legis- lative declaration seems to be held final as to such matters. Napa Valley R. R. Co. v. Board of Supervisors, 30 Cal. 437; also, as to juris- diction of the supreme court over a legislative act declaring certain improvements a "public use," see Sherman v. Buick, 32 Cal. 24i; 91 Am. Dec. 577. 56. Power of legislature over courts and judi- cial officers. A special law directing a certain court to grant an order transferring an indict- ment pending therein against a party, for mur- der, to another district court, is constitutional. People V. Judge of Twelfth Dist., 17 Cal. 547. This case also comments on the general power of the legislature over courts. It has been held that the legislature can impose no duties upon the judiciary but such as are of a judicial char- acter. Tlie legislature cannot delegate to a court the power of establishing town governments or incorporating colleges and the like. People v. Nevada, 6 Cal. 143 : Burgoyne v. Board of Super- visors, 5 Cal. 9; Phelan v. San Francisco, 20 Cal. 39; affirming S. C, 6 Cal. 531. Nor can it authorize a county judge to designate the time and place of holding an election ; such is not a judicial net. Dickey v. Hurlburt, 5 Cal. 343. 57. Miscellaneous. See also as to jurisdiction, etc., of the several courts mentioned, post, §§42. 43, 44, 57. 54. 85. 86, 97, 106, 114, 115, 116, 117, 121, 128, 129, 165, 187, 259, and notes. Legislation § 34. 1. Enacted March 11, 1873. 2. Amended by Code Amdts. 1S80. p. 21, changing word "six" to "three," before "sub- divisions." 3. Repeal by Stats. 1901, p. 118; uncon-- Btitutional. See note ante, § 5. Courts of record. At common law, a court of record is one proceeding accord- §§ 35-39 COURT OF IMPEACHMENT. 28 ing to the course of the common law (Ex parte Thistleton, 52 Cal. 220), in which the acts and judicial proceedings are enrolled for a perpetual memorial and testimony. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. Any court having a clerk and bailiif, and power to fine and imprison, is a court of record; and it is not necessary, to con- stitute such a court, that it have a seal. Ex parte Thistleton, 52 Cal. 220. CODE COMMISSIONERS' NOTE. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. CHAPTER II. COURT OF IMPEACHMENT. § 35. fAmended and renumbered section.] § 36. Members of the court. § 37. Jurisdiction. §35. [See Legislation §36.] § 38. Officers of the court. § 39. Trial of impeachments provided for in the Penal Code. §36. Members of the court. 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. Amdts. 1880, p. 22, p. 118 ; uncon- Legislation § 36. 1. Enacted March 11. 1873, as § 35, and then read: "The court for the trial of impeachments is composed of the members of the senate, or a majority of them." 2. Amended by Code and renumbered § 36. 3. Repeal by Stats. 1901, stitutional. See note ante, § 5. § 37. Jurisdiction. The court has jurisdiction to try impeachments, when presented by the assembly, of the governor, lieutenant-governor, secretary of state, controller, treasurer, attorney-general, surveyor-general, chief jus- tice of the supreme court, associate justices of the supreme court, and judges of the superior courts, for any misdemeanor in office. Officers liable to impeachment, art. IV, § 18; Pen. Code, § 737. See Const., Legislation § 37. 1. Enacted March 11, 1873, as § 36, and then read: "The court has power to try impeachments, when presented by the assem- bly, of the governor, lieutenant-governor, secre- tary of state, controller, treasurer, attorney- general, surveyor-general, justices of the supreme court, and judges of the district courts, for any misdemeanor in office." 2. Amended by Code Amdts. 18SO, p. 22, and renumbered § 3 7. 3, Repeal by Stats. 1901, p. 118; uncon- stitutional. See note ante, § 5. Trial of other civil officers. Civil offi- cers, other than those mentioned in this section, are to be tried for misdemeanor in office, as the legislature may provide (In re Marks, 45 Cal. 199), and a complaint mav be filed by any private person. Woods V. Varnum. 85 Cal. 639; 24 Pac. 843. CODE COMMISSIONERS' NOTE. Const. 1849, art. IV, § 18. § 38. Officers of the court. The officers of the senate are the officers of the court. Legislation § 38. 1. Enacted March 11, 1873, as § 37. 2. Re-enacted by Code Amdts. 1880, p. 22, as § 33, in amending Part I. 3. Repeal by Stats. 1901, p. 118; uncon- stitutional. See note ante, § 5. § 39. Trial of impeachments provided for in the Penal Code. Proceed- ings on the trial of impeachments are provided for in the Penal Code. Proceedings for removal. See Pen § 737 et seq. as § 39, in amending Part I. 3. Repeal by Stats. 1901, p. 118; uncon- T«o-i<.i,n«r, a on t T- i i ■»«• ui. -o-vr. stitutioual. See note ante, § 5. Legislation § 39. 1. Enacted March 11, 1873, as § 38. CODE COMMISSIONERS' NOTE. See Pen. 2. Re-enacted by Code Amdts. 1880, p. 22, Code, SS 737-753, inclusive. Code, Enacted March 11, 1873, 29 SUPREME COURT — TERM BEGINS, WHEN. §§ 40, 41 CHAPTER III. SUPREME COURT. §40. Justices, elections, and terms of office. §51. Original jurisdiction. §41. Computation of years of office. § ■''2- Apijelliito jurisdiction. § 42. Vacancies. § ^•^- I'owers in appealed cases. § 43 Departments. § 54. Concurrence necessary to transact business. §44! Apportionment of business. §55. Transfer of books, papers, and actions. §45 Court in bank §56. Remittiturs in transferred cases. §46! Absence or disability of chief justice. §57. Appeals in probate proceedings and con- § 47. Sessions. Expenses. tested election cases. , „ § 48. Adjournments. S 58. [Related to terms of district court. Re- §49. Decisions in writing. pealed. §§ 59-04. Same.] § 50. Jurisdiction of two kinds. § 40. Justices, elections, and terms of office. 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 predecessors respectively, and hold their offices for the term of twelve years from and after the first Monday after the first day of January next succeeding their election ; provided, that of the justices elected at the general state election of eighteen hundred and seventy-nine, the chief justice shall go out of office at the end of eleven years, and the six associate justices shall have so classified, or shall so classify themselves, by lot, that two of them 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 first Monday after the first day of January, eighteen hundred and eighty; and an entry of such classification shall have been, or shall be made in the minutes o£ the court in bank, signed by them, and a duplicate thereof filed in the office of the secretary of state. Supreme court. See Const., art. VI, §§2, 3. 58 Am. Dec. 398; People v. Seannell, 7 EUgibility. See post, § 156. , „ =„ Cal. 432; Satterlee v. San Francisco, 23 Jurisdiction of supreme court. See post, §§ 50- ,^ 1 0-1 ^n i x • • t- „ -.^^ 53 ^ ^ Cal. 314) ; and one entering into possession Acts relating to supreme court commission. of the office by color of right, becomes a See post, Appendi.'c, tit. "Courts." .liidge de facto. People v. Sassovich, 29 Legislation § 40. 1. En.icted March 11, 1873, Cal. 480; Hull V. Superior Court, 63 Cal. and then read: "The supreme court consists of a -ijq chief justice and four associate justices, elected at the judicial elections, and holding their offices CODE COMMISSIONERS' NOTE. Const., art. for the term of ten years from the first day of yi, §§2, 3. In the case of People v. Wells, 2 January next after their election." Cal. 198, the question was raised whether, in the 2. Amended by Code Amdts. 1880. p. 22. (.^se where a judge was absent from the state, 3. Repeal by Stats. 1901, p. 118; uncon- the legislature could authorize the governor to stitutional. See note ante, § 5. make an appointment during the temporary ab- ■w-11- ^--L-'TA. TT T ii i'i. i- j; sence of such judge. The question was not de- Eligibility. Under the constitution of ci^ed at the time, the court disagreeing, but was 1849, justices were not required to be law- afterward considered, and it was decided (S. C, vers, nor even licensed attorneys. People 2 Cal. 6I0) that such an absence was not a •'^ -p.' . 09 p 1 OOP vacancy in office which could be filled by appoint- V. Dorscy, o.- oai. zyo. ment of the governor, and that a law authorizing Title to office. The title to office, of a such an appointment was unconstitutional. Who iudge of the supreme court, cannot be ques- are eligible to the office of justice of the supreme tioned, except in an action brought for ««^rt. See post. § 156. that purpose (People v. Olds, 3 Cal. 167; § 41. Computation of years of office. The years during which a justice of the supreme court is to hold office are to be computed respectively from and including the first IMonday 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. Term, when commenced. See Const., art. VI, § 3. term to serve is the chief justice." .^.^^ 2. Amendedby Code Amdts. 1880, p. 23. Legislation § 41. 1. Enacted March 11, 187/J. 3^ Repeal by Stats. 1901, p. lid; uncon- and then read: "The iustice having the shortest stitutional. See note ante, § 5. §§42,43 SUPREME COURT. 30 § 42. Vacancies. If a vacancy occur in the office of a justice of the supreme court, the 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. Vacancy in office. See Const., art. VI, § 3. Vacancy. See subject generally, Pol. Code, §§ 995 et seq. Absence or inability of chief justice to act. See post. § 46. Vacancy in office of judge does not aflfect pend- ing proceedings. See post, § 184. Legislation § 42. 1. Added by Code Amdts. ISSO, p. 23. The present § 50 is an amend- ment of the original § 42. 2. Repeal by Stats. 1901, p. 118; uncon- stitutional. See note ante, § 5. Absence on leave. Absence of a judge from the state on leave is not such a va- cancy as can be supplied by the executive under legislative authority. People v. Wells, 2 Cal. 198; People v.^Mizner, 7 Cal. 519; People v. Whitman, 10 Cal. 38. Vacancy and removal. It is only in cases where there is no incumbent to hold over, that the appointee of the executive can fill the office. People v. Whitman, 10 Cal. 38. The executive has no power to remove an officer whose term is fixed by the constitution or statute. People v. Miz- ner, 7 Cal. 519. § 43. Departments. There shall be two departments of the supreme court, denominated respectively department one and department two. The chief justice 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 sit- ting; but the justices assigned to each department shall select one of their number as presiding justice. Each of the departments shall have the power to hear and determine causes and all questions arising therein, sub- ject to the provisions in relation to the court in bank. The presence of three justices 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 justices may adjourn from time to time with the same effect as if all were present, and the concurrence of three justices shall be necessary to pronounce a judgment; provided, that if three do not concur, the cause may be reheard in the same department, or transmitted to the other depart- 1. Added by Code Amdts. present § 51 is an amendment ment, or to the court in bank. Departments. See Const., art. VI, § 2. Legislation § 43. 1880, p. 23. The of the original § 43. 2. Repeal by Stats. 1901, p. 118; uncon- stitutional. See note ante, § 5. Where justices are equally divided. Where the justices qualified to act are equally divided, there must, of necessity, be an affirmance of the judgment. Luco v. De Toro, 88 Cal. 26; 11 L. R. A. 513; 25 Pac. 983; and see Ayres v. Bensley, 32 Cal. 632; and see also Frankel v. Deides- heimer, 93 Cal. 73; 28 Pac. 794; Santa Rosa City Railroad v. Central Street Rail- way Co., 112 Cal. 436; 44 Pac. 733. Where the division of the justices is as to the reversal or affirmance of the judgment on appeal or writ of error, the judgment must be affirmed; the general rule is, that, where the motion is such as to make an affirma- tive decision indispensable to further progress of the action, an equal division will stop the action; but where the mo- tion is in arrest of the progress of the action, an equal division is equivalent to a denial of the motion, and the case pro- ceeds as if the motion had not been made; thus, a rehearing will be denied by an equal division of the judges, and likewise a motion for a new trial, an appeal from judgment, and an application for the ad- mission of testimony. Avres v. Bensley, 32 Cal. 632. Rehearing. Power to grant a hearing in the supreme court, after a determination in a district court of appeal, expires thirty days after the judgment has been pro- nounced in said district court of appeal; but it is not necessary to file the order granting such hearing in the office of the 31 COURT IN BANK — CHIEF JUSTICE, ABSENCE OR DISABILITY. §§ 44-46 <;lerk of the supreme court within that Number of Judges necessary to transact bust- time. People v. Rucf, 14 Cal. App. 581 j '^^^ °^ ""»• «•••« """^ '^"■'- <-'«■''• ^^^-^- ^^si. 114 Pac. 48, 54. § 44, Apportionment of business. The chief justice shall apportion the business to the dcparliuents, and may, in his discretion, 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 pronounced by a depart- ment; 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 bank. If the order be not made within the time above limited, the judgment shall be final; provided, that no judgment by a department shall become final until the expiration of the period of thirty days aforesaid, unless approved by the chief justice in writing, with the concurrence of two associate justices. Similar provision In constitution. See Const., ment of the original § 44. art. VI. § 2. 2. Repeal by Stats. 1901, p. 118; uncon- Legislation § 44. 1. Added by Code Amdts. stitutional. See note ante, § 5. 18SO, p. 23. The present § 52 is an amend- § 45. Court in bank. The chief justice or any four justices may convene the court in bank at any time, and the chief justice shall be the presiding justice of the court when so convened. The presence of four justices shall be necessary to transact any business, 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 judgment, 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 necessary ; and every judgment of the court in bank shall be final, except in cases in which no previous judgment has been ren- dered in one of the departments, and in such cases the judgment of the court in bank shall be final, unless within thirty days after such judgment an order be made in writing, signed by five justices, granting a rehearing. Court in bank. See Const., art. VI, § 2. case is submitted on briefs alone, all the Legislation § 45. 1. Added by Code Amdts. justices, having an equal opportunity to ISSO, p. 24. The present § 53 is an amend- read the argument, are deemed to have "2! ReS'bfsta^ts'.'-iaoi, p. 118; uncon- been present at the argument, within the stitutional. See note ante, § 5. meaning of the constitution, and all or Hearing in bank. A rehearing in bank ^ny of them are qualified to join in the will not be granted, in a case where the '}'l'^'°,^- /^'^^.^^ ^- Newman, 148 Cal. cause has been heard and decided by the ■o'^.-h^^^i^l' 'mf 1 • • xu supreme court in department, and after- , Rehearing. The clause requiring the or- wards by the court in bank. Hegard v. ^^' granting a rehearing to be "signed by ri ^^£ • T „ n^ rrn n^i cox TA "ve lusticcs, IS Unconstitutional. Estate California Insurance Co., 72 Cal. 53o; 14 „ _ •' 01 o 1 hac a t -da -r,. ^'^"^ ^^^'^ ^^^'' ^^ accounted for by him, in annual Legislation § 47. 1. Enacted March 11, 1873, settlements with the controller of state, on the as§oO and then read: The terms ol this court ^,.^4 Monday of December of each year." The must be held at the capital of the state. If § 51 referred to supra was embodied "in the pres- proper rooms in which to hold the court, and gnt § 47 in 1880, when Part I was amended, and for the chambers of the justices, are not provided ^,^5 jj(jjjgji y^y q^^^ Amdts. 1877-78 p 22 and by the state, together with attendants, furniture read, "The Justices and officers of the court 'shall fuel, ights, and stationery, suitable and suftieient be allowed their actual traveling expenses in for the transaction of business, the court may g^jng to and from San Francisco, Los Angeles, direct the sheriff of the county in w-hich it is held and the state capitol for the purpose of holdinff to provide such rooms, attendants, furniture, fuel, terms of court, as prescribed in sections forty lights, and stationery; and the expenses thereof, jji^e and fifty of this chapter" certified by a majority of the justices to be cur- 3. Amended by Code Amdts. 1880, p 24 and rect, must be paid out of the state treasury. renumbered § 47 ' «- . 2. Amended by Code Amdts. 1877-78, p. 22, (1) by changing the first sentence to read, "The Payment of expenses. An irreo'ularity January and July terms of this court shall be in the indorsement of the state controller's held at the city and county of San Irancisco, the 4. * 1.1 £ ^'-'"^*"^^^' ^ April and October term at the city of Los Angeles, warrant lor the expenses Ot the court and the May and November terms at the state does not render it non-transferable bv in- capi^ol"; (2) by changing the words "chambers dorsement: and the fact that the items of of the justices to accommodation of the officers ^ , , ^^ -, , thereof"; and (3) by adding, at the end of the expense ordered and allowed have not section, the words, "for which e.xpenses, and to been actually paid by the clerk will not defray the traveling expenses of the justices and justify the treasurer in refusing payment. oflticers of the court, as specified in § 51 of this -\t i.- t t> 1 xr 1 i i-x /^ f ■>./^r, - code, a sufficient sum shall be annually appro- -[National liank V. Hcrold, /4 Cal. 603; £) priated out of any funds in the state treasury Am. St. Eep. 476; 16 Pac. 507. not otherwise appropriated; said moneys shall be § 48. Adjournments. Adjournments from day to day, or from time to lime, 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. 33 DECISIONS IN WRITING ORIGINAL JURISDICTION. §§49-51 Terms of courts. This section, with § 74. post, does away witli the terms of courts. And see post, §§ ,SS. 101, as to justices' courts. Legislation » .18. 1. Added by Code Amdts. 1880, p. 2.5, to supersede §§ 46, 48, 49, pro- vidiiiK for adjournments and terms of court, and to conform to the new constit\ition. 2. Kepeal by Stats. 1901, p. 119; uncon- stitutional. See note ante, $ 5. § 49. Decisions in writing. In the determination of causes, all decisions of tlie supreme court iu bank, or in departments, shall be given in writing, and the grounds of the decision shall be stated. Decisions to be in writing. See Const., art. vi, §2. Legislation 8 49. 1. Added hy Code Amdts. 1880, p.-^r>: based on Stats. 18G3, p. .3.T4, but was not codified in 1872, as tlie supreme court, in Houston v. Williams, 13 Cal. 24 [73 Am. Doc. 5G.')|, had held unconstitutional the provision re- quiring that "the reasons or grounds of the decision shall be given in a written opinion ac- companying the same"; the objectionable feature being eliminated in the present section. 2. Repeal by Stats. 1901, p. 119; uncon- stitutional. See note ante, § 5. CODE COMMISSIONEES' NOTE. The pro- vision of the act of 1863 (Stats. 1863, p, 334), requiring the court to give written opinion in important ca.ses, has been omitted. In Houston V. Williams, 13 Cal. 24, 73 Am. Dec. 5(5.t, it was held that the constitutional duty of the court was discharged by the rendition of decisions; that the legislature could no more require the court to state the reasons for its decisions than the court could require the legislature fo accom- pany the statutes with the reasons for their en- actment. Says Justice Field: "No such power can exist in the legislative department, or be sanctioned by any court which has the least respect for its own dignity and independence." § 50. Jurisdiction of two kinds. The jurisdiction of the supreme court is of two kinds : 1. Original ; and, 2. Appellate. Jurisdiction generally, of this chapter. See subsequent sections Legislation § 50. as § 42. 1. Enacted March 11, 1873, 2. Amended by Code Amdts. 1880, p. 25, (1) renumbering the section § 50, and (2) changing the word "this" to "supreme." 3. Kepeal by Stats. 1901, p. 119; uncon- stitutional. See note ante, § 5. § 51. Original jurisdiction. In the exercise of its original jurisdiction the supreme court shall have power to issue writs of mandamus, certiorari, pro- hibition, and habeas corpus; and it shall also have power to issue all other writs necessary and proper to the complete exercise of its appellate juris- diction. those cases which call in question the juris- diction of an inferior court, board, or offi- cer (Peojile V. Johnson, 30 Cal. 98) ; and the writ will be granted, only when the act complained of is judicial in its character. Spring Valley Water Works v. Brvant, 52 Cal. 132; Lamb v. Sehottler, 54 Cal. 319 People V. Board of Education, 54 Cal. 375 Spring Valley Water Works v. San Fran Cisco, 82 Cal. 286; 16 Am. St. Eep. 116 6 L. R. A. 756; 22 Pac. 910, 1046 Quinchard v. Board of Trustees, 113 Cal. 664; 45 Pac. 856. The writ cannot be used as a substitute for an appeal, where the time for taking the appeal has elapsed (Faut V. Mason, 47 Cal. 7), as it does not lie where there is an appeal (People v. Shepard, 28 Cal. 115; Stuttmeister v. Supe- rior Court, 71 Cal. 322; 12 Pac. 270), or where there is any other plain, speedy, or adequate remedv (Faut v. Mason, 47 Cal. 7; Noble V. Superior Court, 109 Cal. 523; 42 Pac. 155); neither can it be used as a writ of error, to correct errors, either of law or of fact, committed within the jurisdiction of the lower court or tribunal. Central Pa- cific K. K. Co. V. Board of Equalization, 46 Cal. 667; Buckley v. Superior Court, 96 Cal. Original jurisdiction. See Const., art. vi, § 4. Mandamus. See Const., art. vi, § 4; see also post. §§ 54, 76, 165, 1084 et seq., 1108-1110. Certiorari. See Const., art. vi, § 4 ; see also post, §§ .54, 76, 165, 1067 et seq., 1108-1110. Prohibition. See Const., art. vi, § 4 ; see also post, §§ 54, 76, 165, 1102 et seq., 1108-1110. Habeas corpus. See Const., art. vi, § 4 ; also post, §§ 54, 76, 165. Generally. Pen. Code, §§ 14 73 et seq. Injunction. Post, §§ 54, 76, 165, 356, 525 et seq., 745, l:Ul. Scire facias abolished. Post, § 802. Quo warranto. Post, §§ 76, 803-810. Vvrit. 1. Defined. Ante, § 17. 2. Seal. Post, § 153. 3. Issuance. Post, § 54. 4. Service by telegraph. Post, § 1017. Powers of single justice to issue writs. See post, § 54. Ne exeat. See post, §§ 478 et seq. Legislation § 51. 1. Enacted March 11, 1872, as § 43 (based on Stats. 1863, p. 334), and then read: "Its original jurisdiction extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the e.xercise of its appellate jurisdiction." 2. Amended by Code Amdts. 1880, p. 25, and renumbered § 51. 3. Kepeal by Stats. 1901, p. 119; unconsti- tutional. See note ante, § 5. For original § 51, see ante. Legislation § 47. Certiorari. The jurisdiction of the su- preme court, upon certiorari, is limited to 1 Fair. — 3 §51 SUPREME COURT. 34 119; 31 Pac. 8; Sherer v. Superior Court, 96 Cal. 654; 31 Pac. 565; Johnston v. Board of Supervisors, 104 Cal. 390; 37 Pac. 1046. Mandamus. The supreme court has origi- nal iurisdiction to issue the writ, which is provided for by §§ 54, 76, 165, 1084, 1108, 1110, post. Hyatt v. Allen, 54 Cal. 353; Scott V. Boyle, 164 Cal. 321; 128 Pac. 941. An application for the writ will not be en- tertained by the district court of appeal, unless accompanied by a showing why it was not applied for in the lower court, and the reason for its being made in the first instance in the appellate court. Gray v. Mullins, 15 Cal. App. 118; 113 Pac. 694. Prohibition. At common law, the writ of prohibition was an original remedial writ, provided as a remedy for the en- croachment of jurisdiction; and, notwith- standing this section empowers the courts of this state to issue the writ to municipal corporations, or to boards clothed with gov- ernmental functions, it still retains its character as a prerogative writ, to be issued only in the sound discretion of the court. It ought not to issue to arrest any legislation ponding before a body author- ized to legislate with reference to matters of public interest. Spring Valley Water Works V. San Francisco, 52 Cal. Ill; and see Maurer v. Mitchell, 53 Cal. 289; Lamb V. Sehottler, 54 Cal. 319; People v. Board of Election Commissioners, 54 Cal. 404; Cam- ron V. Kcufield, 57 Cal. 550; Spring Valley Water Works v. Bartlett, 63 Cal. 245; Hobart v. Tillson, 66 Cal. 210; 5 Pac. 83; Spring Valley Water Works v. San Fran- cisco, 82 Cal. 286; 16 Am. St. Rep. 116; 6 L. E. A. 756; 22 Pac. 910, 1046. A district court of appeal has concurrent jurisdiction with the supreme court in original proceed- ings for a writ of prohibition; and a denial, by the district court of appeal, of an appli- cation for the writ, on its merits, is a bar to a subsequent application. in the supreme court; an^ the only effectual method of ob- taining the intervention of the supreme court, in proceedings before a district court of appeal for a writ of prohibition, is an application for a transfer of the case to the supreme court for review. Dawson v. Supe- rior Court, 158 Cal. 73; 110 Pac. 109. Habeas corpus. This writ is provided for by §§ 1473 et seq of the Penal Code. If the justices of a district court of appeal are unaVdc to concur in a judgment upon application for a discharge on habeas cor- pus, the writ must be denied. Application of Ladue, 15 Cal. App. 188; 117 Pac. 586; Application of Galivan, 17 Cal. App. 624; 120 Pac. 1123. Writs abolished. The writ of ne exeat is abolished (§ 24, ante, § 478, post), as is also the writ of scire facias (§ 802, post). Necessary to appellate jurisdiction. The phrase "all other writs" includes such other writs as are not enumerated, which can issue only for the purpose of- completing the exercise of its appellate jurisdiction by the supreme court. Hyatt v. Allen, 54 Cal. 353. The supreme court has power to frame and issue all writs and make all rules necessary to the exercise of its appellate jurisdiction, where the statute has not pro- vided one (Somers v. Somers, Si Cal. 608; 22 Pac. 967); and in those cases where the constitution has conferred a right of appeal to the sujireme court, and the legis- lature has failed to provide a mode of appeal, that court will adopt a suitable mode. People v. Jordan, 65 Cal. 644; 4 Pac. 683. Original jurisdiction of court of last resort In mandamus. See notes 20 Ann. Cas. 184; 58 L. R. A. 833; 38 L. R. A. (N. S.) 1000. CODE COMMISSIONERS' NOTE. Const., art. vi, § 4; Stats. 1863, p. 334. The provision, that the writ of habeas corpus may be issued by each of the justices, and made returnable before the court, or any justice thereof, or before any district court, etc., relates rather to practice than power of the court, and has been inserted in the Penal Code, under the chapter relating to habeas corpus. Part II, Title XII. 1. Issuance of the writs generally. Before the amendments of 1862 to article vi of the state constitution, the supreme court had only appel- late jurisdiction to issue any of the writs men- tioned in the text, except habeas corpus. But the supreme court, even then, might issue any of these writs in aid of its appellate powers. See Ex parte Attorney-General, 1 Cal. 85; White v. Lighlhall, 1 Cal. 347; People v. Turner, 1 Cal. 143; 52 Am. Dec. 295; People v. Turner, 1 Cal. 152 ; People v. Shear, 7 Cal. 139 ; Warner v. Hall, 1 Cal. 90; Purcell v. McKune, 14 Cal. 230; Mili- ken V. Huber, 21 Cal. 166. Since the amend- ments to the constitution it has original jurisdic- tion to issue these writs. Tyler v. Houghton, 25 Cal. 26; Miller v. Board of Supervisors, 25 Cal. 93. See the above-cited cases as to when these writs lie. 2. Writ of mandate (mandamus). See cases cited above, and also People v. Weston, 28 Cal. 640; People v. Hubbard, 22 Cal. 36; People v. Judge of Twelfth District, 17 Cal. 547; People V. Sexton, 24 Cal. 79; People v. Pratt, 28 Cal. 166; 87 Am. Dec. 110; Hopper v. Kalkman, 17 Cal. 517; Brooks v. Calderwood, 19 Cal. 124; Francisco v. Manhattan Ins. Co., 36 Cal. 283. It will compel the performance of a ministerial act. Harpending v. Haight, 39 Cal. 189; 2 Am. Rep. 432. As to when this writ lies, its effect, appli- cation, etc., see post, §§ 1034-1097r 3. Writ of review (certiorari). As to cases where a writ of review (certiorari) has been held to issue, see Clary v. Hoagland, 5 Cal. 476; Cali- fornia Northern R. R. Co. v. Board of Super- visors, 18 Cal. 671; Comstock v. Clemens, 19 Cal. 77; Murray v. Board of Supervisors, 23 Cal. 492; Chard v. Harrison, 7 Cal. 113; Ex parte Field, 1 Cal. 187; People v. Turner, 1 Cal. 143; 52 Am. Dec. 295; People v. Turner. 1 Cal. 152; Wratten v. Wilson, 22 Cal. 465; People v. Su- pervisors of El Dorado County, 8 Cal. 53 ; Miller V. Board of Supervisors, 25 Cal. 94; Hastings v. San Francisco, 18 Cal. 49. It does not lie when an appeal may be taken. Clary v. Hoagland, 13 Cal. 173; People v. Shepard, 28 Cal. 115; Gray V. Schupp, 4 Cal. 185. It cannot be taken be- fore the inferior tribunal has completed its judg- ment. Wilson V. Board of Supervisors, 3 Cal. 386; and see also, as to its issuance and effect. People V. Board of Delegates, 14 Cal. 479; Robin- son V. Board of Snpervisoj-s, 16 Cal. 208; El Dorado County v. Elstner, 18 Cj.1. 144; see also Central Pacific R. R. Co. v. Board of Equaliza- tion, 32 Cal. 582; 34 Cal. 352. 4. Review. The jurisdiction of the Buprenie court, under the amended constitution, to review the yjroceedings of inferior courts, boards, and officers upon certiorari, is limited by the very nature of the writ to cases where the jurisdic- tion of the inferior court, board, or officer is impeached. People v. Johnson, 30 Cal. 101. 35 APPELLATE JURISDICTION. §52 Certiorari, or writ of review, lies to review the proceedings of infeiicir tribunals, etc., only when there hns been an exocss of jurisdiction. I'coiile V. Johnson, 30 Cnl. 98; see Ex parte Perkins, 18 Cal. 60; Coulter v. Stark, 7 Cal. 211; Kk parte Hanson, 2 Cal. 263: People v. Dwineile, 29 Cal. 632: Application of Spring Valley Water Works, 17 Cal. I.'t2. But not to correct, merely, errors of law. People v. Burney, 29 Cal. 459. Under the provisions of the constitution, a writ of review (certiorari) can be rifrht fully issued from the office of the clerk of the supreme court, only upon an order of the court. Smith v. Oak- land, 40 Cal. 481; see further, post, §§1066- 1077. 5. Writ of prohibition. OriKinal jurisdiction of supreme court. Tyler ▼. Houghton, 25 Cal. 26; see cases cited in note 1, supra; and also, furtlier, post, §§ 1102-110.5. 6. Kabeas corpus. See Kx parte Rowe, 7 Cal. 17.5; 7 Cal. IHl; 7 Cal. 184; Kx parte KUis, 11 Cal. 222; Kx parte Perkins, 18 Cal. 60; In re Corrvell, 22 f'al. 178; In ro Romaine, 23 Cal. 58,"); In re Perkins, 2 Cal. 424; In re Manchester, 5 Cal. 237; People v. Turner, 1 Cal. 143; 52 Am. Dec. 295; People v. Turner, 1 Cal. 152: People V. Smith. 1 Cal. 3; In re Ring, 28 Cal. 247; Ex parte Branigan, 19 Cal. 133; Ex parte Bird, 19 Cal. 130; Kx parte Queen of the Bay, 1 Cal. 157; Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; see further. Pen. Code, §§ 1473- 1505, inclusive. Appellate jurisdiction. See Const., art. vi, § 4. Appeals. 1. In general. Post, §§ 936 et seq. 2. To supreme court. Post, §§ 963 ct seq. § 52. Appellate jurisdiction. The supreme court shall have appellate jurisdiction : 1. In all cases in equitj^ except such as arise in justices' courts. 2. In ail 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 value of the property in con- troversy, amounts to three hundred dollars. 8. In all eases 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 hj indictment, or information, in a court of record, on questions of law' alone. the clause granting to the supreme court power to issue all writs and process necessary to the exercise of its appellate jurisdiction, conferred authority to issue mandamus and other prerogative writs, only in aid of its appellate jurisdiction (People V. Turner, 1 Cal. 143; 52 Am. Dee. 295; Hyatt v. Allen, 54 Cal. 353; Ex parte Hollis, 59 Cal. 405; White v. Lighthall, 1 Cal. 347; Cowell v. Buckelew, 14'"Cal. 640; Hicks V. Michael, 15 Cal. 107); but, under the present constitution, the supreme court has, as it had under the amendment to the constitution of 1849, original jurisdiction in the issuance of such writs. Plyatt v. Allen, 54 Cal. 353. Suits in equity. The supreme court has jurisdiction in divorce cases, on appeal; and its jurisdiction is as broad as the origi- nal jurisdiction in matters of ecjuity. Sharon v. Sharon, 67 Cal. 1S5; 7 Pac. 456, 635; 8 Pac. 709; Wadsworth v. Wads- worth, 81 Cal. 182; 15 Am. St. Rep. 38; 22 Pac. 648. Cases at law. This term, as used in the constitution, means civil cases, as distin- guished from criminal cases. People v. .Johnson, 30 Cal. 98; Wheeler v. Donnell, 110 Cal. 655; 43 Pac. 1. Title to and possession of real estate. Wliore a question of title to or right to the possession of lands is necessarily involved, the supreme court has appellate jurisdic- tion (Holman v. Taylor, 31 Cal. 338); but where a complaint in the superior court, after transference from a justice's court, is amended, alleging ownership of lands, Legislation § 52. 1. Enacted March 11, 1873, as § 44, and then read: "Its appellate jurisdic- tion extends: 1. To all civil actions for relief formerly given in courts of equity; 2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation; 3. To all civil actions in which the subject of litigation is capa- ble of pecuniary estimation 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 inter- est, or the value of the property in controversy, amounts to three hundred dollars; 4. To all spe- cial proceedings; 5. To all cases arising in the probate courts; and, 6. To all criminal actions amounting to felony, on questions of law alone." 2. Amended by Code Amdts. 18SO, p. 25, and renumbered § 52. 3. Repeal by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. Appellate jurisdiction. The essential criterion of appellate jurisdiction is, that it revises proceedings already instituted, and does not institute them. People v. Tur- ner, 1 Cal. 143; 52 Am. Dec. 295; and the legislature cannot impair the exercise of the appellate power conferred by the con- stitution. Haight V. Gay, 8 Cal. 297; 68 Am. Dec. 323; People v.'^Bingham, 82 Cal. 238; 22 Pac. 1039. Where the supreme court has no jurisdiction, it will not decide any legal questions raised (People v. .John- son, 30 Cal. 98), but will dismiss the pro- ceeding, of its own motion. Bienenfeld v. Fresno Milling Co., 82 Cal. 425; 22 Pac. 1113. Under the constitution of 1849, which conferred no original jurisdiction, except in habeas corpus, it was held that ^52 SUPREME COURT. 36 and asking damages for a sum less than three hundred dollars, to which no answer is filed, and judgment is taken by default, the supreme court has no jurisdiction. Gorton v. Ferdinando, 64 Cal. 11; 27 Pac. 941; Henigan v. Ervin, 110 Cal. 37; 42 Pac. 457. Tax, toll, municipal fine. The supreme court lias appellate jurisdiction in all cases at law involving "the legality of any tax, impost, assessment, toll, or municipal fine." Bottle Mining etc. Co. v. Kern, 154 Cal. 96; 97 Pac. 25. Pilotage allowed by an act establishing pilots is not a toll, and an appeal does not lie, unless within the juris- dictional amount. Harrison v. Green, J.8 Cal. 94; and see People v. .Johnson, 30 Cal. 98. A municipal fine, within the provision of the constitution of 1849, is a fine im- posed by the local laws of particular places, such as towns and cities. People v. Johnson, 30 Cal. 98. Amount in controversy. The amount in controversy controls the jurisdiction of the sujireme court in actions to recover money; and the amount sued for, not the amount recovered, is the test of the juris- diction. People V. Madden, 134 Cal. 611; 66 Pac. 874. The demand spoken of in the constitution is the demand for judgment, evidenced by the prayer of the complaint, and the statement of facts which can up- hold the judgment prayed for. Derby v. Stevens, 64 Cal. 287; 30 Pac. 82. The de- mand, exclusive of interest, must amount to three hundred dollars (Doyle v. Sea- wall, 12 Cal. 280; Hopkins v. Cheeseman, 28 Cal. 180; Solomon v. Eeese, 34 Cal. 28; Maxfield v. Johnson, 30 Cal. 545) ; and the sum for which the judgment is recov- ered does not affect the jurisdiction on appeal. Solomon v. Eeese, 34 Cal. 28; Pennybecker v. McDougal, 48 Cal. 160; McKiernan v. Hesse, 51 Cal. 594; Sanborn V. Superior Court, 60 Cal. 425. While the ad damnum clause in the complaint is the best test of jurisdiction on appeal (Bailey V. Sloan, 65 Cal. 387; 4 Pac. 349; Maxfield V. Johnson, 30 Cal. 545; Solomon v. Eeese, 34 Cal. 28; Erving v. ISTapa Vallev Brew- ing Co., 17 Cal. App. 367; 119 Pac. 940); 3'et it is not conclusive, where the com- plaint shows that the sum is feignedly or purposely added for the sole purpose of obtaining jurisdiction. Lehnhardt v. Jen- nings, 119' Cal. 192; 48 Pac. 56; 51 Pac. 195. Where the amount involved is less than three hundred dollars, the proceeding will be dismissed by the supreme court, of its own motion, although the question of jurisdiction is not raised by counsel. Bien- enfeld v. Fresno Milling Co., 82 Cal. 425; 22 Pac. 1113. Th^ pleading of a counter- claim in excess of three hundred dollars does not confer jurisdiction (Maxfield v. .Johnson, 30 Cal. 545); nor does the state- ment of jurisdictional facts in a counter- claim on an independent contract (Gris- wold V. Pieratt, 110 Cal. 259; 42 Pac. 820); but where a set-off, less than three hundred dollars in amount, exclusive of interest, is pleaded as purely defensive matter in re- duction or extinguishment of the claim of the complaint, the court may very prop- erly entertain jurisdiction (Hart v. Coojter, 47 Cal. 77; Griswold v. Pieratt, 110 Cal. 259, 265; 42 Pac. 820); and if the aggregate amount of the different counts of a com- plaint exceeds three hundred dollars, the court has jurisdiction. Ventura County v. Clay, 114 Cal. 242; 46 Pac. 9. In certio- rari, the amount in controversy does not affect the jurisdiction (Heinlen v. Phillips, 88 Cal. 557; 26 Pac. 366; . Costs are not included in determining the jurisdictional amount (Maxfield v. Johnson, 30 Cal. 545), where the amount demanded in the com- plaint is insufficient to confer jurisdiction (Henigan v. Ervin, 110 Cal. 37; 42 Pac. 457) ; neither is a percentage, added by au- thoritj' of statute. Zabriskie v. Torrey, 20 Cal. 173. Insolvency proceedings. An appeal also lies in insolvency proceedings, to review the judgment (Fisk v. His Creditors, 12 Cal. 281; and see People v. Shepard, 28 Cal. 115; People v. Eosborough, 29 Cal. 415); which is not now a special proceed- ing (People V. Eosborough, 29 Cal. 415; Fisk V. His Creditors, 12 Cai. 281); but neither certiorari (People v. Shepard, 28 Cal. 115) nor error lies in such cases. People V. Shepard, 28 Cal. 115; Kohlman V. Wright, 6 Cal. 230; Fisk v. His Cred- itors, 12 Cal. 2S1. Probate matters. In probate matters an appeal lies from an order directing pay- ment of a debt or claim, regardless of the amount thereof. Ex parte Orford, 102 Cal. 656, 36 Pac. 928. Special proceedings. An appeal lies to the supreme court from a judgment in cer- tiorari (Winter v. Fitzpatriek, 35 Cal. 269; Morley v. Elkins, 37 Cal. 454); in man- damus (Palache v. Hunt, 64 Cal. 473; 2 Pac. 245) to compel a trial judge to settle a statement on motion for a new trial (People v. Eosborough, 29 Cal. 415; Wood v. Strother, 76 Cal. 545; 9 Am. St. Eep. 249; 18 Pac. 766); in prohibition (Santa Cruz Gap etc. Co. v. Board of Supervisors, 62 Cal. 40) ; in an action to determine, upon reference by the surveyor-general, the rights of the respective parties to pur- chase school-lands from the state (Eisdon V. Prewett, 8 Cal. App. 434; 97 Pac. 73); and in an action brought, under the Bank Commissioners' Act, to force a bank into liquidation. People v. Bank of San Luis Obispo, 152 Cal. 261; 92 Pac. 481; but there is no appellate jurisdiction in the supreme court in contempt cases (In re Vance, 88 Cal. 262; 26 Pac. 101; Tyler v. Connolly, 65 Cal. 28; 2 Pac. 414; Sanchez V. Newman, 70 Cal. 210; 11 Pac. 645), al- though the amount of the fine is within its jurisdiction (Tyler v. Connolly, 65 Cal. 28^ 2 Pac. 414; Euggles v. Superior Court, 103 37 APPELLATE JURISDICTION. §o2 Cal. 12S; 37 Pae. 211), and the proceeding is classed as criminal. Tyler v. Connolly, 65 Cal. 2S; 2 Pac. 414. Criminal cases. Under the constitution of 1849, the supreme court had no appel- late jurisdiction of misdemeanors, or crimes less than a felony, and none could be conferred by the legislature in sndi cases (People v. Applej^ate, 5 Cal. 211."); People V. Shear, 7 Cal. 139; People v. Vick, 7 Cal. 1(17); People v. Fowler, 9 Cal. 85; Peoj.Ie V. Cornell, 16 Cal. 1S7; People v. "War, 20 Cal. 117; People v. Burney, 29 Cal. 459; People v. Johnson, 30 Cal. 98; Peoide V. Apsar, 35 Cal. 389), but, under the pres- ent constitution an appeal lies to the su- preme court in cases of misdemeanor pros- ecuted by indictment or information (People V. Pingree, 61 Cal. 141; People v. Jordan, 65 Cal. 644; 4 Pac. 683), and from a .iudgment rendered in a prosecution for misdemeanor in oflice. People v. Kallo(di, GO Cal. 113. The district court of ap]>eal has jurisdiction of an appeal by the i)eo- plc, from an order made Ijefore judgment, setting aside an information charging the crime of murder. People v. White, 161 Cal. 310; 119 Pac. 79. Appeal to wrong court. An appeal wrongly taken to the supreme court will be ordered transferred to a district court of ap]ieal for decision (Bottle Mining etc. Co. V. Kern, 154 Cal. 96; 97 Pac. 25; Peo- ple V. White, 161 Cal. 310; 119 Pac. 79); and an appeal improperly taken to a dis- trict court of appeal must be transferred to the supreme court. Erving v. Napa Valley Brewing Co., 17 Cal. App. 367; 119 Pac. 940; Asiatic Club v. Biggv, 160 Cal. 713; 117 Pac. 912; Eisdon v. Prewett, 8 Cal. 434; 97 Pac. 73. The jurisdiction of a district court of appeal is limited to cases wdiere the value of the property in controversy is less than two thousand and more than three hundred dollars. Erving V. Napa Valley Brew^ing Co., 17 Cal. App. 367; 119 Pac. 940; Bottle Mining etc. Co. V. Kern, 154 Cal. 96; 97 Pac. 25. CODE COMMISSIONERS' NOTE. 1. Construc- tion of the section generally. This section is intended to clearly define the appellate jurisdic- tion of the supreme court. Section 4 of article vi of the constitution, so far as it related to the appellate power, as it stood prior to amendments of 1862, was as follows: "The supreme court shall have appellate jurisdiction in all cases where the matter in dispute exceeds two hundred dollars, when the lejralily of any tax or impost, or municipal fine, is in question, and in all criminal cases amounting to felony, on questions of law alone. . . ." And, as amended in 1862, is as follows: "The supreme court shall have ap- pellate jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real estate, or the leffality 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; also, in all cases aris- ing in the probate courts: and also in all crim- inal cases amounting to felony, on questions of law alone. . . ." To have simply followed the terms of the constitution in defining the juris- diction would have conveyed to one not familiar with the construction placed upon those terms by our court of last r?8ort, but « faint idea of the extent or limit of tliat jurLsdiclion. In Conaiit v. Conant, 10 Cal. 252, 70 Am. iJec. 717, which was an action for a divorce from tlie bonds of nialrimony by the wife against her husband, an objection was taken to the hearing of the appeal, based upon the ground of want of a|)pellate juris- diction, because no (|uesti(in of pro|)(Tty was in- volved. Said Field, J., dilivcring the opinion of the court [quoting at length). In Knowles v. Yates, 31 Cal. 84, which was a proceeding under the act of 18.50, providing f.ir contesting eleclions, it was contended that, under the amendment of 1862, the appellate jurisdic- tion of the court was confined to the class of cases enumerated in article iv, aa amended, viz.: 1. To cases in equity; 2. To the cases at law involving questions of property or the legality of a tax, etc.: 3. To cases arising in the probate courts; 4. To criminal cases; -;-And thai' therefore there was no appellate ju- risdiction over special proceedings, or any class of cases not included within the constitutional enumeration. After argument and reargument, the court, Currey, C. J., delivering the opinion, sustained the jurisdiction. Said the learned jus- tice, speaking for the court [quoting at length]. In constructing this section the commission kept steadily in view these authoritative expositions of the constitution, and have endeavored to engraft their results upon the text of the amendments of 1862. They do not use the phrases, "cases in equity," "cases at law," and it is a little singular, to say the least, that those phrases were in- serted in the constitution more than ten years after the adoption of the Tractice Act, the first section of which declared that there should be one form of civil actions, obliterating at once the distinctions between actions at law and suits in equity, abolishing the forms of all such actions and placing in their stead the proceedings under the Practice Act. The continued use of those phrases, and of the terms "ejectment," ' "tres- pass," "replevin," etc., when applied to proceed- ings in our courts, leads but to confusion, and has retarded the enforcement of the Practice Act in the spirit of its conception. An enumeration of the particular orders, etc., which are appli- cable per se, is omitted in this part of the code; they will be found in Part II, under the title "Appeals in Civil Actions." 2. Divorce decree. The supreme court possesses appellate jurisdiction from a decree rendered in a suit for divorce. Conant v. Conant, 10 Cal. 249; 70 Am. Dec. 717. 3. Eeal property. Cases involving title to or possession of real property. Doherty v. Thayer, 31 Cal. 140; see also Paul v. Silver, 16 Cal. '73. 4. Distinction between civil and criminal cases involving municipal fines, etc. "Cases at law or civil actions involving legality of tax. imjxjst, as- sessment, toll, or municipal fine." defit'cd, and held to refer to civil cases as distinguished from criminal cases. The supreme court has not juris- diction of a criminal case whenever it may be claimed the validity of a tax, etc., is involved. People V. Johnson, 30 Cal. 98. 5. Money demands. Value of property in con- troversy. ]5ofore the amendments to the consti- tution (which went into effect .January 1, 1863), the appellate jurisdiction of the supreme court over money demands extends only to cases where the amount in dispute exceeded two hundred dol- lars. Luther v. Ship Apollo, 1 Cal. 15; Simmons V. Brainard, 14 Cal. 278; Crandall v. Blen. 15 Cal. 406; People v. Carman, IS Cal. 693; Zabris- kie V. Torrey, 20 Cal. 173; Malson v. Vaughn. 23 Cal. 61; Skillman v. Lachman, 23 Cal. 199; 83 Am. Dec. 96; Meeker v. Harris, 23 Cal. 285; Bolton V. Landers, 27 Cal. 106. And it made no difference, although the enforcement of a mechan- ic's lien or foreclosure of a mortgage by which the demand was secured was asked for in the same case. Poland v. Carrigan, 20 Cal. 174. Since the adoption of the amendments (.hinuary 1, 1863), the appellate jurisdiction of the su- preme court has extended over money demands, etc., only where the amount in controversy was for the sum of three hundred dollars or more. Hopkins v. Cheeseman, 28 Cal. 180; Maxfield v. §52 SUPREME COURT. 38 Johnson, 30 Cal. 545; Solomon v. Reese, 34 Cal. 28. 6. Definition and explanation of phrases, "amount in controversy," "value of property in controversy," etc. In Gordon v. Ross, 2 Cal. 156, and Doyle v. Seawall, 12 Cal. 280, it was held that costs might be added to the judgment of the court below, for the purpose of conferring appel- late jurisdiction on the supreme court; and if, when added, the total amount exceeded two hun- dred (now three hundred) dollars, the supreme court had jurisdiction on appeal; but these cases were overruled in Dumphy v. Guindon, 13 Cal. 28, and it was held that costs were merely inci- dental to the suit, and formed no part of it for the purpose of an appeal. See, too, Votan v. Reese, 20 Cal. 89; Maxfield v. Johnson, 30 Cal. 545; Bolton v. Landers, 27 Cal. 106; Zabriskie v. Torrev, 20 Cal. 173; see also Conant v. Conant, 10 Cal. 250; 70 Am. Dee. 717. It was held, also, that where the plaintiff is appellant, and the judgment is for the defendant, the jurisdiction of the supreme court is determined by the amount claimed by the comnlaint, for that is the amount in dispute in such cases. Gillespie v. Benson, 18 Cal. 410; Votan v. Reese, 20 Cal. 89. And in the last-cited case it was said that if the appeal is by the plaintiff, from a judgment in his favor, then the amount in dispute is the difference be- tween the amount of the judgment and the sum claimed by the complaint; but this part of that decision was overruled in Solomon v. Reese, 34 Cal. 33. In Skillman v. Lachman, 23 Cal. 201, 83 Am. Dec. 96, after quoting from and comment- ing on Gillespie v. Benson, and Votan v. Reese, the court held: "So, upon the same principle, if the appeal is taken by the defendant from a judg- ment rendered against him for a sum exceeding two hundred dollars, exclusive of costs and per- centage, the supreme court had [prior to 1863, when amendments to article vi of the state con- stitution went into operation] jurisdiction of the case, because the amount of the judgment is the matter' in dispute on appeal. So, too, if the ap- peal is taken by the defendant from a judgment in his favor when he has set up a counterclaim, if that judgment is for a sum more than two [now, since 1863, three] hundred dollars less than he claims in his answer, this court has juris- diction. The interest due on the demand sued for forms a part of the amount to be included in the estimate of the 'amount in dispute.' " But Justice Sanderson, in reviewing these cases, says: "In actions for the recovery of money, this court has jurisdiction, if 'the demand, exclusive of in- terest, amounts to three nundred dollars.' Const., art. vi, § -^ . The demand, exclusive of interest, in this case amounts to five hundred and fifty dol- lars. The language of the constitution in respect to the jurisdiction of this court is the same asit is in respect to the jurisdiction of the district court, and there can be, therefore, no difference in the rules by which questions as to jurisdiction of the subject-matter are to be determined in the two courts. For the purpose of ascertaining whether the district court has jurisdiction, we look to the complaint, and in this class of cases, if the sum sued for amounts to three hundred dollars, exclusive of interest, that court has juris- diction, and by parity of reason this court has jurisdiction on appeal. The amount sued for. ex- clusive of interest, is the test of the jurisdiction of this court, regardless of the judgment of the latter court. We dissent entirely from the dic- tum of the court in the case of Votan v. Reese. 20 Cal. 90, to the effect that where the plaintiff recovers in the district court less than he sues for, the test of the jurisdiction of this court, in the event the plaintiff appeals, is the difference between the judgment of the district court and the demand made in the complaint, exclusive of interest. All civil cases which the district courts have jurisdiction to try, this court has jurisdic- tion to review, no matter what the judgment of the district court may have been. If the plain- tiff sues to recover a demand for five hundred dollars, and the district court gives him a judg- ment for three hundred only, his demand does not thereby become converted into a demand for two hundred dollars for the purpose of an appeal, should he be dissatisfied with the judgment and desire to bring his case to this court. On the contrary, in the sense of the constitution his de- mand in this court is precisely the same that it was in the court below, and is to be ascertained by looking to the complaint, and not by deduct- ing the judgment of the district court from the demand alleged in the complaint. In other words, the ad damnum clause in the complaint is the test of jurisdiction in the court below." Maxfield V. Johnson, 30 Cal. 546; Solomou v. Reese, 34 Cal. 33. 7. Certiorari. Appeal from writ of certiorari. The supreme court has jurisdiction over appeals in cases of certiorari. Morley v. Elkius, 37 Cal. 454; see, however, People v. Carman, 18 Cal. 693. 8. Election cases. The supreme court has ap- pellate jurisdiction over the decisions of county courts iu election cases. Knowles v. Yates, 31 Cal. 82; Dickinson v. Van Horn, 9 Cal. 207. 9. Insolvency proceedings. It was decided in Kohlman v. Wright, 6 Cal. 231, and in Fisk v. His Creditors, 12 Cal. 281, not only that the su- preme court had jurisdiction in error in insol- vency cases, but that such errors might be brought up by appeal. (This was prior to the adoption of the amendments to Const., art. vi.) The ju- risdiction in ejror has not been withdrawn by the constitutional amendments. Section 939 (§336) of the Practice Act gives an appeal from final judgment in special proceedings. People v. Shep- ard, 28 Cal. 117. 10. Criminal cases. The supreme court has no appellate jurisdiction in criminal cases of a lesser grade than felony (not even on a writ of error, certiorari, or on appeal). People v. Shear, 7 Cal. 139; People v. Vick, 7 Cal. 165; People v. Apple- gate, 5 Cal. 295; People v. Fowler, 9 Cal. 86; People V. Cornell, 16 Cal. 187; People v. War, 20 Cal. 117; People v. Burney, 29 Cal. 459; People V. Johnson, 30 Cal. 98. And the judgment of conviction of the lower court, and not the indict- ment, determines the character of this class of cases for the purposes of appeal. If the indict- ment be for a felony, but the judgment is for only a misdemeanor, the supreme court has no appellate jurisdiction. People v. Apgar, 35 Cal. 391, and cases cited. A distinction is made where there is no evidence of a material fact, and where there is some evidence, but not enough to sustain a verdict. The supreme court has jurisdiction on appeal in criminal cases over the question, whether the verdict is contrary to the evidence in one case, as well as in the other. Whether a de- fendant in a criminal action is entitled to a new trial upon the ground that the verdict is contrary to the evidence, is a question of law, and not a question of fact, within the meaning of article vi, § 4, of the constitution. People v. Jones, 31 Cal. 565. See the several opinions in the case. 11. Generally, judgments, whether by default or otherwise, subject to appeal. It was held that, as to the right of appeal, there is no distinction between judgment by default and judtrment after issue joined and a trial. There is no force in the suggestion that the sunreme court exercises origi- nal interest of appellate jurisdiction, if it re- views errors on appeal from judgments by default. Although in such a case, as a matter of fact, the court below does not pass upon the sufficiency of the complaint, yet as a matter of law it does. Though entered by the clerk without the direc- tion of the judge, it is as much the judgment of the court as if it had been announced from the bench, and the defendants are as much entitled to the opinion of the supreme court upon the sufficiency of the complaint as they would have been had they appeared and demurred. Ques- tions of jurisdiction and of the sufficiency of the complaint upon the point whether the facts stated constituted a cause of action are never waived in any case, and may be made for the first time in the supreme court. Hallock v. Jaudin, 34 Cal. 173. 12. Order refusing transfer from district court to United States circuit court not appealable. It was held that from an order refusing to transfer an action from a district court of this state to the circuit court of the United States no appeal lies. The rpniedv is bv mandamus in such cases. Hopper v. Kalkman, 17 Cal. 517; Brookg v. Cal- derwood, 19 Cal. 124. 39 POWERS IN APPEALED CASES. §53 13. Law of the case. When a decision is ren- dered in a particular case by the supreme court, Buoh decision, whether right or wrong, becomes the law of the case, and is not subject to revision on a second appeal. It is conclusive of the rights of the parties. Davidson v. Dallas, 1.5 Cal. 75 (see cases cited therein) ; Dewey v. Gray, 2 Cal. 376; Clary v. Hoasrland, .5 Cal. 470; (i Cal. 685; Gunter v. Laflfan, 7 Cal. 592; Washington Bridse Co. V. Stewart, 3 How. (U. S.) 413, 424; 11 L. Kd. 65S: Leese v. Clark, 20 Cal. 387. 14. When remittitur has issued, jurisdiction of case is lost. Whon a remittitur has issued, and the court has adjourned for the term at which judgment was given, the supreme court has then lost all further jurisdiction over the case. David- son V. Dallas, 15 C.-^l. 76. The supreme court has no apjjellate jurisdiction over its own judgments. Leese v. Clark, 20 Cal. 387; but see note to § 45, [§ 53,] post. 15. Legislature can regulate mode of appeal. While the legislature cannot substantially impair the right of appeal, it is competent to regulate the mere mode in which this right must be exer- cised. Ilaight V. Gay, 8 Cal. 297; 63 Am. Dec. 323. And for fuller information on the subject of jurisdiction, see notes to §§ 33, 43, ante, and 84, 85, 97, 104, 114, post. § 53. Powers in appealed cases. The supreme court may affirm, reverse, or modify any judLi;ment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. The decision of the court shall be given in writing, and in giving its decision, if a new trial be granted, the court shall pass upon and deter- mine all the questions of law involved in the case, presented Upon such ap- peal, and necessary to the final determination of the ease. Its judgment in appealed cases shall be remitted to the court from which the appeal was taken. Where the appellate court directs the kind of judgment to be rendered, instead of di- recting a modification of the judgment, there is, in effect, a reversal. Argenti v. San Francisco, 30 Cal. 45S. Modification of judgment. The appellate court may render such judgment as the court below should have rendered (Gahan V. Neville, 2 Cal. 81; Grayson v. Guild, 4 Cal. 122; Anderson v. Parker, 6 Cal. 197; Crosby v. McDermitt, 7 Cal. 146; Wallace V. Eldredge, 27 Cal. 495; People v. Sierra Buttes Quartz Mining Co., 39 Cal. oil; Foucault V. Pinet, 43 Cal. 136; Noonan v. Hood, 49 Cal. 293); and may add to the judgment of reversal, directions that the cause be tried de novo, or may direct that partial issue be tried, leaving all other facts already found by the court as facts in the case, or it may enter or direct that the lower court enter judgment upon cer- tain specified facts (Argenti v. Sau Fran- cisco, 30 Cal. 458; and see Marziou v. Pioche, 10 Cal. 545; Soule v. Dawes, 14 Cal. 247; Soule v. Eitter, 20 Cal. 522; Myers v. McDonald, 68 Cal. 162; 8 Pac. 809) ; or it may modify an erroneous judg- ment to conform to the facts, and, as modified, affirm it (Swan v. Talbot, 152 Cal. 142; 17 L. E. A. (X. S.) 1066; 94 Pac. 238; American-Hawaiian etc. Co. v. Butler, 17 Cal. App. 764; 121 Pac. 709; Welch v. Ware. 161 Cal. 641; 119 Pac. 1080; Sterling V. Gregory, 149 Cal. 117; 85 Pac. 305; Peo- ple v. Kerr, 15 .Cal. App. 273; 114 Pac. 584; Coghlan v. Quartararo, 15 Cal. App. 662; 115 Pac. 664; Mannix v. Trvon, 152 Cal. 31; 91 Pac. 983; Petitpierre"^ v. Ma- guire, 155 Cal. 242; 100 Pac. 690; Shep- pard V. Sheppard, 161 Cal. 348; 119 Pac. 492), without directing an entire reversal of the judgment. Eedwood City Salt Co. V. Whitney, 153 Cal. 421; 95 Pac. 885; Petitpiorre v. Maguire, 155 Cal. 242; 100, Pac. 690; Sheppard v. Sheppard, 15 Cal, Errors and defects are to be disregarded. Post, § 4 75. Records, though not conclusive, are presumed correctly to determine the rights of the parties. Post, § 1963, subd. 17. Costs on appeal. Post, § 1027. Remittitur. Post, § 958. Legislation § 53. 1. Enacted March 11, 1872, as §45, and then read: "The court may reverse, affirm, or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or fur- ther proceedings to be had. Its judgment must be remitted to the court from which the appeal was taken." 2. Amended by Code Amdts. 1880, p. 25, and renumbered § 53. 3. Repeal by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. Decision as to moot questions. The court will not decide question not directly in- volved in the case, and not necessary to the judgment (West v. Smith, 5 Cal. 96), nor indulge in the discussion of abstract questions in a case over which it has no jurisdiction (People v. Johnson, 30 Cal. 98), nor decide moot cases (People v. Pratt, 30 Cal. 223), nor moot questions of law raised by counsel. State v. McGlynn, 20 Cal. 233; 81 Am. Dec. 118; Phelan v. Supervisors of San Francisco, 9 Cal. 15. Affirmance of judgment. The dismissal of an appeal is, in effect, an affirmance of the judgment. Eowlaud v. Kreyenhagen, 24 Cal. 52. Reversal of judgment. The effect of a reversal of judgment is to restore the rights of the parties to the same condition in which they were before the rendition of the judgment reversed. .Argenti v. San Francisco, 30 Cal. 458; Falkner v. Hendv, 107 Cal. 49; 20 Pac. 21, 386; Eyan v. Tom- linson, 39 Cal. 639; Phelan v. Supervisors of San Francisco, 9 Cal. 15; Stearns v. Aguirre, 7 Cal. 443. It does not necessarily bar further proceedings in the action. Id.; Sharp V. Miller, 66 Cal. 98; 4 Pac. 1065; Myers v. McDonald, 68 Cal. 162; 8 Pac. 809, §53 SUPREME COURT. 40 App. 619; 115 Pac. 751. Modification of the judgment appealed from will be or- dered, where justice can be done, without remanding for a new trial. Atherton v. Fowler, 46 Cal. 320; Daves v. Southern Pacific Co., 98 Cal. 19; 35 Am, St. Eep. 133; 32 Pac. 708. Judgment may be modified by consent (Pearsall v. Henry, 153 Cal. 314; 95 Pac. 159), and a decree, erroneous in form, may, without a re- versal, be modified to conform to the find- ings (Barrett-Hicks Co. v. Glas, 14 Cal. App. 289, 303; 111 Pac. 760); as, where the appellant Avas entitled to recover costs on the trial, it may be modified as to such costs, without reversal. Petitpierre v. Ma- guire, 155 Cal. 242; 100 Pac. 690. A modi- fication of a fraudulent judgment does not operate to set it aside. Clark v. Dunnam, 46 Cal. 204. When new trial results. Unless there is something in the opinion or order of the court to the contrary, an order reversing and refnanding simplv accords a new trial (Myers v. McDonakf, 68 Cal. 162; 8 Pac. 809); but where a new trial is not author- ized by the language of the judgment, any judgment rendered upon a new trial is null and void. Argenti v. San Francisco, 30 Cal. 458. The effect of the order, "re- versed and remanded," is, simply, to set aside the judgment and to grant a new trial (Kyan v. Tomlinson, 39 Cal. 639). A case may be remanded for a new trial upon a particular issue (Mayberry v. Whittier, 144 Cal. 322; 78 Pac. 16); but where the new trial is granted only on a single issue, the former determination of the trial court upon the remaining issues is allowed to stand. Duff v. Duff, 101 Cal. 1; 35 Pac. 437. Thus, a judgment against two, where only one appeals, may be re- versed as to the one who appeals, and aflBrmed as to the other (Minturn v. Bay- lis, 33 Cal. 129); or it may be affirmed upon remission of damages. Doll v. Feller, 16 Cal. 432; De Costa v. Massachusetts Flat Water etc. Co., 17 Cal. 613; Muller v. Boggs, 25 Cal. 175; Lamping v. Hyatt, 27 Cal. 99; Carpentier v. Gardiner, "29 Cal. 160; Atherton v. Fowler, 46 Cal. 320. A new trial will be awarded, and not a modi- fication, where the wrong construction is placed upon a written instrument in evi- dence. Hicks V. Coleman, 25 Cal. 122; 85 Am. Dec. 103. Where the construction placed by the lower court upon its findings is doubtful, a new trial should be ordered. Estate of Richardson, 94 Cal. 63; 15 L. R. A. 635; 29 Pac. 484. The appellate court will direct a new trial, where the findings require judgment for a party other than the one for which judgment was had, where the findings were baseil on evidence erroneously admitted or excluded; other- wise it will modifv the judgment. Sun Ins. Co. V. White, 118 Cal. 468; 50 Pac. 546. A party will not be entitled to a new trial, however, where the judgment is for such a small amount that the court may apply the maxim, De minimis non curat lex. Willson V. McEvoy, 52 Cal. 169. Direct proper judgment. The supreme court, on reversal of the judgment, has power to order judgment in favor of the other party (Argenti v. San Francisco, 30 Cal. 458; Pollard v. Putnam, 54 Cal. 630; Schroeder v. Schweizer Llovd etc. Gesell- sehaft, 60 Cal. 467^ 44 Am. Rep. 61); or it may direct affirmance upon the remission of excessive damages, and if the excess is not remitted, order the cause remanded for a new trial. Carpentier v. Gardiner, 29 Cal. 160; Atherton v. Fowler, 46 Cal. 323; Daves- V. Southern Pacific Co., 98 Cal. 19; 35 Am. St. Eep. 133; 32 Pac. 70S. The su- preme court, under the plenary powers vested in it by this section, will order a judgment only in a proper case, and a new trial where the action seems to demand it. Alden v. Mayfield, 164 Cal. 6; 127 Pac. 44. New trial. While the parties have a right to retry the cause after judgment reversed, yet they cannot do so in disre- gard of the opinion of the supreme court, as the directions thereof become a part of the judgment. Davidson v. Dallas, 15 Cal. 75. The superior court can enter no other judgment than the one directed. Argenti v. Sawyer, 32 Cal. 414. The lower court, having passed on the merits of the con- troversy on reversal of the judgment, can take no further proceedings, unless au- thorized by the supreme court, except such as may be necessary to give effect to the judgment on appeal: the whole matter is res adjudicata (Crowell v. Gilmore, 17 Cal. 194; Soule v. Ritter, 20 Cal. 522; McLaugh- lin V. Kellv, 22 Cal. 211; Marshall v. Shaf- fer, 32 Cal. 176; Satterle^ v. Bliss, 36 Cal. 489; Argenti v. Sawyer, 32 Cal. 414). The reversal, by the supreme court of the United States, of a judgment of affirmance of the state supreme court, does not im- mediately reverse the judgment of the su- perior court: upon the coming down of the remittitur, the appeal is still pending in the state supreme court, for further dispo- sition not inconsistent with the decision of the Federal supreme court. Harding v. Harding, 148 Cal. 397; 83 Pac. 434. If the appellant dies after the submission of the appeal, and the judgment and order ap- pealed from are affirmed, the affirmance will be entered nunc pro tunc as of the date of the submission. Estate of Dolbeer, 149 Cal. 227; 86 Pac. 695. Where the ap- pellate court affirms an order granting a new trial, it is proper to grant the new trial, rather than to order judgment. Pol- litz V. Wickersham, 150 Cal. 238; 88 Pac. 911. A new trial will be awarded, and not a modification, where a wrong construction is jdaced upon a written instrument in evi- dence. Hicks V. Coleman, 25 Cal. 122; 85 Am. Dec. 103. Extreme caution should be exercised in refusing a new trial on re- versal; it should be refused only in cases 41 POWERS IN APPEALED CASES. §53 where it is plain, either from the pleadings or from the nature of the controversy, that the party against whom the reversal is I)roeurecl cannot prevail. ttchroeder v. Schweizer Lloyd etc. Gesellschaft, GO Cal. 467; 44 Am. Kep. (Jl; Oakland Paving Co. V. Bagge, 79 Cal. 439; 21 Pac. 8.55; Estate of Kichardson, 94 Cal. G3; 15 L. K. A. G35; 29 Pac. 484. Written decisions. While the constitu- tion riMjuires that all decisions shall be in writing, yet the legislature cannot require the supreme court to give in writing the reasons for its decision. Houston v. Wil- liams, 13 Cal. 24; 73 Am. Dec. 565; and see also Estate of .Tessup, 81 Cal. 408; 6 L. H. A. 594; 21 Pac. 976; 22 Pac. 742, 1028. There is a distinction between the decision of the court and the opinion; the decision is the judgment of the court, w'hile the opinion is the reasons given for the judg- ment. Houston V. Williams, 13 Cal. 24; 73 Am. Dec. 565; Wilson v. Wilson, 64 Cal. 92; 27 Pac. 861. The trial court may give a wrong reason for its decision; yet if it is correct in law, it will not be reversed, as the ajipellate court will not review the reasons for its decision: the statute does not make it incumbent upon the prevailing party to defend the logic of the trial judge (Chabot V. Tucker, 39 Cal. 434; Dav'ev v. Southern Pacific Co., 116 Cal. 325; 48 Pac. 117; Groome v. Almstead, 101 Cal. 425; 35 Pac. 1021; Shanklin v. Hall, 100 Cal. 26; 34 Pac. 636; W^hite v. Merrill, 82 Cal. 14; 22 Pac. 1129; People v. Crowey, 56 Cal. 36; Clarke v. Huber, 25 Cal. 593; Hubbard v. Sullivan, 18 Cal. 508; Eleven v. Freer, 10 Cal. 172; Helm v. Dumars, 3 Cal. 454); be- sides, any unnecessary expression of opin- ion by the judge does not settle the law of the case. State v. McGlvnn, 20 Cal. 233; 81 Am. Dec. 118. Remittitur. The effect of filing the re- mittitur in the lower court, where every- thing is regular, and free from fraud or imposition, is to deprive the supreme court of jurisdiction, unless for some valid rea- son the remij:titur is recalled and the juris- diction resumed. Grogan v. Ruckle, 1 Cal. 193; Mateer v. Brown, 1 Cal. 231; Phelan V. San Francisco, 20 Cal. 39; Blanc v. Bow- man, 22 Cal. 23; Rowland v. Kreyenhaeen, 24 Cal. 52; Vance v. Pena, 36 'Cal. 328; Hanson v. McCue, 43 Cal. 178; People v. Sprague, 57 Cal. 147; People v. McDer- mott, 97 Cal. 247; 32 Pac. 7; Estate of Levinson. 108 Cal. 450; 41 Pac. 483; 42 Pac. 47 9. Jurisdiction, however, is not lost until the remittitur is filed in the lower court. Grogan v. Ruckle, 1 Cal. 193; Mateer v. Brown, 1 Cal. 231. Where acci- dent, fraud, imposition, inadvertence, or mistake is shown, the supreme court may recall the remittitur and stay proceedings. Rowland v. Krevenhagen, 24 Cal. 52; Vance v. Pena, 36' Cal. 328; Estate of .Tes- sur., 81 Cal. 408; 6 L. R. A. 594; 21 Pac. 976; 22 Pac. 742, 1028. If the clerk im- jiroperly or improvidcntly Bonds the remit- titur to the lower court, the sujirfnie court is not thereby deprived of jurisdiction (Grogan v. Ruckle, 1 Cal. 193; Mateer v. Brown, 1 Cal. 231); as where he makes a wrong entry and transmits the wrong re- mittitur. Vance v Pefia, 36 Cal. 328. In such cases the supreme court does not lose jurisdiction, and may recall the remittitur even after it has been filed, correct any error, vacate the judgment, and restore the cause to the calendar. Vance v. Pena, 36 Cal. 328; Hanson v. McCue, 43 Cal. 178; Bernal v. Wade, 46 Cal. 640. On the death of one of the parties after argument and submission but before decision, if the re- mittitur has been sent to the lower court, it may be ordered returned, judgment set aside, and the court may render a decision as of the date of the submission. Black v. Shaw, 20 Cal. 68; Savings and Loan So- ciety V. Gibb, 21 Cal. 595; Holloway v. Galfiac, 49 Cal. 149. A petition for re- hearing, deposited in an express-office so as to reach the clerk within the limit of time fixed by the rule, will be held, in con- templation of law, to be in the hands of the clerk, and the remittitur, having gone down, will be recalled (Hanson v. McCue, 43 Cal. 178; Bernal v. Wade, 46 Cal. 640); but a printed transcript in course of trans- mission is not within this rule. Ward v. Healy, 110 Cal. 587; 42 Pac. 1071. The remittitur will not be recalled after a dis- missal for failure to file a brief. People v. McDermott, 97 Cal. 247; 32 Pac. 7. CODE COMMISSIONERS' NOTE. 1. When court will not reverse judgment of lower court. The supreme court will not reverse an order made by a judge, refusing to grant a new trial, unless there has been a gross abuse of discretion in the premises. The court will not review the verdict of a jury, where the evidence is contradictory, or where the jury refuse to give full credit to the testimony of witnesses. Duell v. Bear River etc. Mining Co., 5 Cal. 8G. The findings of a court, etc., will be taken to be correct, unless it clearly appears to the contrary. Every intendment is in favor of the correctness of a court of general jurisdiction, unless it clearly appears to the con- trary. lilcHenrv v. Moore, 5 Cal. 90; Ford v. Hnl- ton, 5 Cal. 319; Morgan v. Ilugg, .5 Cal. 409; Ellis V. Jean.s, 26 Cal. 272; Dickinson v. Van Horn, 9 Cal. 207; Owen v. Morton, 24 Cal. 378. 2. Setting aside order granting new trial. The supreme court have repeatedly decided that the power to grant new trials is one of legal discre- tion, and the abuse of that discretion, only, will justify an interference with the order. It is only in rare in.'^tances and upon very strong grounds that the supreme court will set aside an or'ler granting a new trial. Quinn v Kenyon, 22 Cal. a2. 3. When court will not direct entry of final Judgment of lower court. The sujireme court will not direct the entry of a final judgment when there are controverted facts to be decided. Lick V. Diaz, 37 Cal. 446. 4. Correction of false or mistaken entry or order in minutes of supreme court. When there is a false order entered by mistake by the clerk of the supreme court, the minutes of the chief justice may be used in a direct proceeding to amend the record for the purpose of correcting the minutes of the clerk, even after a remittitur has issued. Vance v. Pena 30 Cal. 32-*. 5. Correction of errors in records of lower court. The supreme court cannot correct errors in the §§ 54^57 SUPREME COURT. 42 records of a lower court. Applications for that 6. Power of court to make rules. The power purpose must be made to the court in the record of the court to make rules for its government, of which the error exists. Boston v. Haynes, 31 and the time when such rules take effect, is pro- Cal. 107. vided for in §§ 129, 130, post. § 54. Concurrence necessary to transact business. The concurrence of three justices of the supreme court is necessary for the issuance of any writ, or the transaction of any business, except 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 make such writs returnable before himself or the supreme court, or any department, or judge thereof, or before any superior court in the state, or any judge thereof. Concurrence of judges. See Const., art. vi, § 2. from the state are suspended, and a previ- Eusiuess at chambers. Post, § 16.5. ous concurrence of such absent iustice, in Habeas corpus. See U. S. Const., art. v, nrdpr mnrlp rlnrino- Viic nh«Pnf>P i<5 nf no Amdts.: Const., art. vi, § 4. See also post, §§ 76, an order made during his absence, is ot no 165. Generally. Pen. Code, §§ 1268 et seq., 1473 effect. People V. Kuef, 14 Cal. App. 5/6, et seq., 1492 et seq. 5S1; 114 Pac. 48, 54. A judgment of the Legislation g 54. 1. Enacted March 11, 1873, district court of appeal becomes final, Un- as § 46, and then read: "The presence of three less within thirty davs after such judg- Justices is necessary for the transaction of busi- mp^it a vnlid order i'^ iriadp bv the sunremp ness, but one or more of the justices may trans- ment a \ aud order is made Dy tne supreme act such business as can be done at chambers, court that the cause be heard and deter- and may adjourn the court from day to day, with mined by the court last named. People V. the same effect as if all "f ere pre.sent " jj^ f 14 q j ^ jg;^ -^^^^ p 43 rj, 2. Amended by Code Amdts. 1S80, p. 25, and . ,.' „ i- 1 • 1. ' , £ i renumbered § 54. justices 01 a district court or appeal can- 3. Repeal bv Stats. 1901, p. 119; unconstitu- not render a judgment (Daggett v. South- tional. See note ante, § 5. • ^.^^^ Packing Co., 155 Cal. 762; 103 Pac. Concurrence, defined. The joint concur- 202): the three judges of that court must rence of four justices, necessary for the concur in the judgment. Application of transaction of business by the court, Ladue, 15 Cal. App. ISS; 117 Pac. 586; means a union in action and design of the Application of Woods, 17 Cal. App. 323; required number of justices qualified, with 123 Pac. 1135; Application of Galivan, 17 power to act at the very moment of the Cal. App. 624; 120 Pac. 1123. decision; the functions of a justice absent § 55. Transfer of books, papers, and actions. All records, books, papers, causes, actions, proceedings, and appeals lodged, deposited, or pending in the supreme court abolished by the constitution, are transferred to the su- preme court herein provided for, which has the same power and jurisdiction over them as if they had been in the first instance lodged, deposited, filed, or commenced therein, or, in cases of appeal, appealed thereto. Transfer of papers. Const., art. xxii, § 3. 3. Repeal by Stats. 1901, p. 119; unconstitu- Leglslation § 55. 1. Added by Code Amdts. tional. See note ante, § 5. t880, p. 25. § 56. Remittiturs in transferred cases. In all cases of appeal transferred to the supreme court, .its judgments shall be remitted to the superior courts of the counties, or cities and counties from which the appeals were taken respectively, with the same force and effect as if said cases had been ap- pealed to the supreme court from such superior courts. Remittitur. See post, § 958. Legislation § 56. Added by Code Amdts. 1880, p. 26. § 57. Appeals in probate proceeding's and contested election cases. Ap- peals in probate proceedings and contested election cases shall be given preference in hearing in the supreme court, and be placed on the calendar in the order of their date of issue, next after cases in which the people of the state are parties. Legislation 8 57. 1. Added by Stats. 1887, ceedings shall be given preference in hearing in p. 82, and then read: "Appealsin probate pro- the supremo court, and be placed on the calendar 43 JUDGES AND ELECTIONS. §§ 58-65 in the order of their date of issue, next after Speedy determination. The law contem- cases in which the people of the state are par- »,i„<, , .„„i i* j.- n u^ tigg •' '^ ^ c la c uic pa platcs a speedy (ietoriiunation of probata 2. Amended by Stats. 1903, p. 69. cases and election contests. Estate of lley- Tho original § 57 related to jurisdiction of dis- wood, ];")4 ("al. .312; 97 Pac H'J.'j; Bass V. trict courts. Leavitt, 11 Cal. App. 582; 10.5 Pac. 771. § 58. [Related to terms of court in first district. Repealed.] Legislation 8 58. 1, Enacted March 11, 1872. 4. Repealed by Code Amdls. 1880, p. 21, in 2. Amended by Code Amdts. 1873-74, p. 397. amending Part 1. 3. Amended by Code Amdts. 1875-76, p. 83. § 59. [Related to terms of court in second district. Repealed.] Legislation § 59. 1. Enacted March 11, 1872. 3. Repealed by Code Amdts. 1880, p. 21, in 2. Amended by Code Amdts. 1875-76, p. 83. amending Part I. §60. [Related to terms of court in third district. Repealed.] Legislation § 60. 1. Enacted March 11, 1872. 3. Repealed by Code Amdts. 1880, p. 21, in 2. Amended by Code Amdts. 1877-78, p. 93. amending Part I. § 61. [Related to terms of court in fourth district. Repealed.] Legislation § 61. 1. Enacted March 11, 1S72. amending Part I. 2. lijpealed by Code Amdts. 1880, p. 21, in § 62. [Related to terms of court in fifth district. Repealed,] Legislation g 62. 1. Enacted March 11, 1872. amending Part I. 2. Repealed by Code Amdts. 1880, p. 21, in § 63. [Related to terms of court in sixth district. Repealed.] Legislation § 63. 1. Enacted March 11, 1872. amending Part I. 2. Repealed by Code Amdts. 1880, p. 21, in § 64. [Related to terms of court in seventh district. Repealed.] Legislation S 64. 1. Enacted March 11, 1872. legislature is required to pass laws providing for 2. Amended by Code Amdts. 1875—76, p. 84. and regulating the conduct of the election. And 3. Repealed by Code Amdts. 1880, p. 21, in an election for district judge would be invalid, amending Part I. unless made in pursuance of the statutory regu- ^^■r^.., ^^-^^-rr^^-^r^-^-r^-r,^. ^-r^^^ rr,, • latlous. Pcoplc V. WclleT, 11 CbI. 40; 70 Am. CODE COMMISSIONEKS' NOTE. The consti- jy^^ §54 ; see further, for elections to fill vacancy, tution art vi,^ o, [1849,] does not provide fully term, etc., People v. Weller, 11 Cal. 77; People for the election of district ..ludges. Statutory ^ Burbank. 12 Cal. 378; Brodie v. Campbell, 17 regulations are required to give efficacy to the c^l. 11. See Pol. Code, §§ 1042, 1043. constitution, which, is not self-executing. The CHAPTER IV. SUPEEIOE COURTS. §65. Judges and elections. §71. Superior courts, by judges of other counties, § 66. Counties liaving two or more judges. § 72. Judges pro tempore. § 67. Superior court of the city and county of § 73. Sessions. San Francisco. § 74. Adjournments. § 67a. Superior court of Los Angeles County. §75. Jurisdiction of two kinds. § 67b. Extra sessions of the superior court. § 76. Original jurisdiction. §68. Terms of oftice. §77. Appellate jurisdiction. § 69. Computation of years of office. § 78. Process. I 70. Vacancies. § 79. Transfer of books, papers, and actions. § 65. Judges and elections. 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 hereinafter 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 respect- ively; 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. Number of superior judges. See Const,, art. vi. Separate judges for Sutter and Yuba. See § 6. Stats. 1897, p. 48. R/'7"/'^,^a**^*'*"^ °^ superior courts. See post. Legislation g 65. 1. Added by Code Amdts. *S 'o-7»- 1880, p. 26, to conform to Const. 1879. The §§ 66-67a SUPERIOR courts. 44 original 5 65 was included in original code chap- Code Amdts. 1880, p. 21, in amending Part I. ter iv, §§ 54-78, Title I, which fixed the terms, 3. Repeal by Stats. 1901, p. 119; unconsti- etc, of the district courts in the seventeen judi- tutional. See note ante, § 5. cial districts of the state, and was repealed by § 66, Counties having two or more judges. In each of the counties of Alameda, Los Angeles. Sacramento, San Joacjuin, 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 . superior 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. Number of superior judges. See Const., art. vi, 3. Repeal by Stats. 1901, p. 119; unconstitu- §§6, 7. tional. See note ante, § 5. „ , ... See ante. Legislation, § 65, for repeal of origi- Legislation § 66. 1. Added by Code Amdts. ^gj s gg 18SO. p. 26, to conform to Const. 1879. § 67. Superior court of the city and county of San Francisco. In the city and county of San Francisco, there shall be sixteen judges of the superior 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 number, a presiding judge, who may at any time be removed as presiding judge, and another chosen in his place by a vote of any nine of them. The presiding judge shall distribute the busi- ness of the court among the judges thereof, and prescribe the order of busi- ness, and perform such other duties as the judges of said court may by rule provide. The judgments, orders and proceedings of any session of the su- perior court, held by any one or more of the judges of said court, shall be equally as effective as if all of said judges of said court presided at such session. Within ninety daj'S after this act becomes a law, the governor shall ap- point four judges of the superior court in the city and county of San Fran- cisco, in addition to the twelve superior court judges already provided for by law, in and for said city and county of San Francisco, state of California, who shall hold othce until the first Monday after the first day of January, nineteen hundred and fifteen. At the next general election to be held in November, nineteen hundred and fourteen, four additional judges of the superior court shall be elected in the city and county of San Francisco, who shall be successors of the judges appointed hereunder for the term prescribed by the constitution and by law. The salaries of the said 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 in and for the city and county of San Francisco, and now authorized by law. Number of superior judges. See Const., art. vi, presiding judge," after "removed," and (b) sub- § 6. stituting "nine of them" for "seven of them," at Process. Post, §78. end of sentence; (3) in third sentence, adding . ,. at end, "and perform such other duties as the Legislation g 07. 1. Added by Code Amdts. judges of said court may by rule provide" ; (4) in ISSO, p. 2G, to conform to Const. 1879. fourth sentence, substituting "equallv as effective 3. Repeal by Stats. 1901, p. 119; unconstitu- gg jf ^i, ^f ^^^jj judges" for "equally effective as tional. See note ante, § 5. „ ,,s . if all the judges"; (5) adding the second para- 3. Amended by Stats. 1913, p. 48, (1) in graph, first sentence substituting "there shall be six- See ante, LegislatiJon § G5, for repeal of original teen judges" for "there shall be elected twelve e gy_ judges"; (2) in second sentence, (a) adding "as § 67a. Superior court of Los Angeles County. In counties of the first class there shall be eighteen judges of the superior court, any one or more- 45 EXTRA SESSIONS OF THE SUPERIOR COURT. § 67b of whom may hold court, and there may be as many sessions of said court at the same time as tliere are ."judf2:es thereof. The said judf^es shall choose from their OAvn number a presidino: judire, who may at any time be removed as presiding judge and another judge chosen in his place by a vote of any twelve of them. The presiding judge shall distribute the business of the court among the judges thereof, and prescribe the order of business and per- form such other duties as the judges of the said court may by rule provide. 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 equally as effect- ive as if all the said judges of said court presided at such session. Within thirty days after this act goes into effect, the governor shall appoint six ad- ditional judges of the superior court in counties of the first class in addition to the twelve superior court judges already provided by law in and for the said counties of the first class who shall hold office until the first Monday after the first da}^ of January, nineteen hundred and fifteen. At the next general election to be held in November, A. D. nineteen hundred and four- teen, six additional judges of the superior court shall be elected in counties of the first class, who shall be successors of the judges appointed hereunder, to hold office for the term prescribed by the constitution and by law. The salaries of said 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 said counties of the first class now authorized by law. Legislation § 67a. 1. Added by Stats. 1909, appoint three additional judges of the superior p. 11. court in counties of the second class in addition 2. Amended by Stats. 1913, p. 334, (1) in to the nine superior court judges already pro- first sentence, substituting "In counties of the vided for by law in and for the said county of first class there shall be eighteen judges" for Los Angeles, state of California, who shall hold ''In counties of the second class there shall be office until the first Monday after the first day twelve judges"; (2) at end of second sentence, of January, 1911"; (5) in sixth sentence, sub- substituting "by a vote of any twelve of them" stituting (a) "in November, A. D. 1914, six addi- for "by a vote of any seven of them"; (3) at tional judges" for "in November, A. D. 1910, end of fourth sentence, substituting "presided at three additional judges," and (b) "counties of such session" for "presided as such session," the the first class" for "counties of the second class"; "as" of the original section being evidently a (6) in seventh (the last) sentence, substituting typographical error; (4) recasting the fifth sen- "said counties of the first class" for "suiierior tence, the original reading, "Within thirty days court of Los Angeles County." after this act becomes a law, the governor shall § 67b. Extra sessions of the superior court. Whenever, in the opinion of the judge or a majority of the judges of the superior court of any county, or city and county, the public interests so justify or require, one or more sessions of said superior court, to be known as extra sessions of said superior court, may be held in addition to and at the same time as the sessions of said court spoken of in sections numbered sixty-six and sixty-seven of this code. Whenever the judge or a majority of the judges of the superior court of • any county or city and county shall decide that an extra session of said court shall be held, said judge or a majority of said judges shall appoint the time when said extra session shall be held, but no extra session of any superior court shall continue beyond the thirty-first day of December of the year in which such session is established. The judge or a majority of the judges of said superior court shall likewise appoint a place, within the county seat of said county or city and county, where such extra session of said court shall be held, and shall have the same power and authority to pro- vide a place for holding such extra session of said court as is had by a judge of a superior court to provide a place for holding a session of a superior court. § 67b SUPERIOR COURTS. 46 Whenever, in a county or city and county having but one judge of the superior court, said judge shall provide for an extra session of said court, he shall, at the time of so providing or from time to time during the con- tinuance of said extra session, apportion to the judge who may preside over said extra session such portion of the business of said court as he may desire, and at the close of such extra session shall order such portions of said busi- ness so apportioned and not transacted to be transferred to himself. Whenever, in any countj^ or city and county having more than one judge of the superior court, a majority of said judges shall provide for an extra session of said court, a majority of said judges, at the time of so providing or from time to time during the continuance of said extra session, shall order transferred to the judge who may preside over such extra session from the judges to whom they have been assigned according to law or the rules of said court, such portions of the business of said court as they may select; and, at the close of such extra session shall order retransferred to the judges of said court such portions of said business so transferred as shall not have been transacted. Except as above provided, any rules of any superior court relating to the transfer of any business from one judge of said court to another shall apply to the transfer of any business duly assigned to the judge presiding over any extra session from said judge to any judge of said court. Whenever an extra session of the superior court of any county or city and county has been provided for, the judge or a majority of the judges of said superior court shall invite and authorize a judge of the superior court of some other county or city and county to hold and preside over such extra session, and upon such invitation and authorization such judge may so serve. Upon the request of the judge or a majority of the judges of the superior court of any county or city and county, the governor of the state shall desig- nate and authorize, to hold and preside over such extra session of the su- perior court of said county or city and county, a judge of the superior court of some other county or city and county; and upon such designation and authorization by the governor such judge must so serve. The judgments, orders, and proceedings of any extra session of any su- perior court, held in accordance with the provisions of this section, shall be equally effective as if any or all of the judges of said court presided at such session. Any judge or any number of the judges of any superior court may hold and preside over any extra session of said court, with or without, the judge designated and authorized to hold and preside over said session. Any judge of any superior court may perform in connection with any business duly assigned to the judge presiding over any extra session of said court any act which he could perform in connection with any business assigned to any other judge of said court. Any judge, holding or presiding over any extra session of a superior court, may perform in chambers or in court, in connec- tion with any business duly assigned to him, any act which could be per- formed by any judge of said court, in chambers or in court, in connection with such business if duly assigned to himself; but no judge, holding or presiding over any extra session of any superior court, shall perform, in chambers or in court, any act in connection with any business that has not been duly assigned to him. 47 TERMS OF OFFICE — SUPERIOR COURTS, BY JUDGES OF OTHER COUNTIES. §§ 68-71 All provisions of the laws of this state applying to the compensation of a judge of a superior court, holding the superior court in a county other than his home county, shall apply to judges holding extra sessions of a superior court in any county other than his home county. Legislation g 67b. AtUkd by Stats. 1909, necessarily constitutes a request made by P- 1004. Qjjg jii'lge. ^VilliaIns v. Hawkins, 2U Cal. Majority action. A request, made by a App. 161; 128 Pac. 754. majority of the judges of a superior court, § 68. Terms of office. The term of office of judges of the superior court shall be six years from and after the first INIonday of January next succeed- ing their election; provided, that the twelve judges of the superior court elected in the city and county of San Francisco at the general state election of eighteen hundred and seventy-nine shall have so classified, or shall so classify themselves, by lot, that four of them shall go out of office 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 hundred and eighty; and the entry of such classification shall have been, or shall be, made in the minutes of the court, signed by them, and a duplicate thereof filed in the office of the secretary of state ; and provided further, that all the other superior judges elected at the general state election of eighteen hun- dred and seventy-nine shall go out of office at the end of five years from the first Monday of January, eighteen hundred and eighty. Term of office. See Const., art. vi, § 6. 2. Repeal by Slats. 1901, p. 119; unconsti- tutional. See note ante, § 5. Legislation § 68. 1. Added by Code Amdts. See ante, Legislation § 65, for repeal of origi- 18SO, p. 27, to conform to Const. 1879. nal § C8. § 69. Computation of years of office. The years during which a judge of a superior court is to hold office are to be computed respectively from and including the first Monday of January of any one year to and excluding the first ]\Ionday of January of the next succeeding year. Computation of time. See Const., art. vi, § 6. Excluding Monday. The constitution of See ante, §41. the State seems to exclude the first Mon- Legislation § 69. 1. Added by Code Amdts. day, in computing the term of the judges ISSO. p. 27, to conform to Const. 1879. of the superior court. Merced Bank v. Ros- 2. Repeal by Stats 1901, p. 119; unconsti- ^^^^ j gg <. j 39 3^ p g^g 33 p tutional. See note ante, S ;>. ' > • > See ante, Legislation § 65, for repeal of origi- ToZ, nal § 69. § 70. Vacancies. If a vacancy occur in the office of judge of a superior court, the governor shall appoint an eligible person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall take place at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term. Vacancy. Legislation § 70. 1. Added by Code Amdts. 1. Filling. See Const., art. vi, § 6. See 1880. p. 27, to conform to Const. 1879. ante, § 42. 2. Repeal by Stats. 1901, p. 119; unconsti- 2. In office, and mode of supplying. See Pol. tutional. See note ante, § 5. Code, §§ 995 et soq. See ante, Legislation § 65, for repeal of origi- 3. Does not affect pending proceedings. See nal § 70. post, § 184. §71. Superior courts, by judges of other counties. A judge of any superior court may hold the superior court in any county, at the request of the judge or judges of the superior court thereof, and, upon the request of the governor, it shall be his duty to do so; and in either case the judge hold- ing the court shall have the same power as a judge thereof. §§72,73 SUPERIOR COURTS. 48 acting legally, and upon a proper request, in the absence of any showing to the con- trary. Estate of Newman, 75 Cal. 213; 7 Am/ St. Eep. 14G; 16 Pac. SS7; People v. Ah Lee Doon, 97 Cal. 171; 31 Pac. 933. Power of judge acting out of county. The provision gi\ing a judge, holding court in another county on request, the same power as the judge of that county, is con- stitutional (Gardner v. Jones, 126 Cal. 614; 59 Pac. 126; and see also Kirkwood V. Soto, 87 Cal. 394; 25 Pac. 488); and a judge so acting has the same power as the judge for whom he acts. Estate of New- man, 75 Cal. 213; 7 Am. St. Rep. 146; 16 Pac. 887; People v. Ah Lee Doon, 97 Cal. 171; 31 Pac. 933. Sitting for another judge. See Const., art. vi, § 8. See post, § 160. Legislation § 71. 1. Added by Code Amdts. 18SO, p. 27, to conform to Const. 1879. 2. Repeal by Stats. 1901, p. 119; unconsti- tutional. See note ante, § .5. See ante, Legislation § 65, for repeal of origi- nal 5 71. Holding court by request. This section provides a mode of securing the attend- ance of another judge, where the judge of the court is disqualified; a change of the place of trial in criminal cases, on the ground of the disqualification of the judge, is not authorized by law (People v. Mc- Garvey, 56 Cal. 327), but it is permissible in civil cases. Gage v. Downey, 79 Cal. 140; 21 Pac. 527, 855. A judge "so holding court in another county is presumed to be § 72. Judges pro tempore. Any cause in a superior court may be tried by a judge pro tempore, who must be a member of the bar admitted to prac- tice before the supreme court, agreed upon in writing by the parties litigant, or their attorneys of record, approved 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 were a judge of such court. A judge pro tempore shall, before enter- ing upon his duties in any cause, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be,) that I will 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, according to the best of my ability." Judge. 1. Pro tempore. Const., art. vi, § 8. 2. Superior, must be admitted before su- preme court. See post, § 157. Legislation § 72. 1. Added by Code Amdts. ISSO, p. 27, to conform to Const. 1879. 2. Repeal by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. See ante, Legislation § 65, for repeal of origi- nal § 72. § 73. Sessions. The superior courts shall be always open (legal holidays and non-judicial days excepted), and they shall hold their sessions at the county seats of the several counties, or cities and counties, respectively. They shall hold regular sessions, commencing on the first IMondays of Janu- ary, April, July, and October, and special sessions 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. Duties of superior judges, generally. See Pol. Code. §§ 4150, 4151. Always open. See Const., art. vi, § 5 ; post, 5 134. Holidays, etc. See ante, § 10; post, §§ 134, 135. Legislation § 73. 1. Added by Code Amdts. 1880, p. 27, to conform to Const. 1879. 2. Repp:il by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. See ante, Legislation § 65, for repeal of origi- nal § 73. Superior court always open. Terms of the superior court were abolished by the constitution of 1879. In re Gannon, 69 Cal. 541; 11 Pac. 240. Prior to that time, it was held, under § 76, post, which then pro- vided therefor and expressly authorized it, that the superior court was always open to hear special proceedings of a civil nature. Stewart v. Mahoney Mining Co., 54 Cal. 149. Ministerial acts may be performed on holiday. See note ante, § 13. Sessions of superior court. A session of court means the time during whirdi the court is in fact held at a place api>ointed, and engaged in the transaction of busi- ness. In re Gannon, 69 Cal. 541; 11 Pac. 240; Falltrick v. Sullivan, 119 Cal. 613; 51 Pac. 947. Kecess. By the term "recess" is meant the time in which the court is not actually engaged in business. In re Gannon. 69 Cal. 641; 11 Pac. 240; Falltrick v. Sullivan, 11» Cal. 613; 51 Pac. 947. 49 ADJOURNMENTS — ORIGINAL JURISDICTION. §§7-i-7G § 74. Adjournments. Adjournments from day to day, or from time to time, are to he construed as recesses in the sessions, and sluill not prevent the court from sitting at any time. Adiournment presunied. Tt will be pre- sumed, in favor of a jiulgment, that the court regularly adjouriu'ij, altlioujih the record fails to show it. Doty v. Jenkins, U2 L'al.497; 77 Pae. 1104. The jurisdiction of the superior courts Equalization, 43 Cal. 3G5; Ex parte Ben- nett, 44 Cal. S4), and does not depend upon the rightfulness of the decision (Sherer v. Superior Court, 96 Cal. 653; 31 Pac. .jlJo), 3'et it may be understood that the power to pronounce the resulting judtiment consti- tutes a I'art of the suljject-inatter over which jurisdiction extends. Crew v. Pratt, 119Cal'. 131;51Pac. 44. Adjournments from time to time mere recesses in the sessions. See ante, § 48. Legislation 8 74. 1. Added by Code Amdts. 18&0, p. -JS, to confDrm to Const. 1879. 2. Kt|)C!il by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. Sei- ante, Legislation § 05, for repeal of origi- nal § 7-1. § 75. Jurisdiction of two kinds. is of two kinds : 1. Original ; and, 2. Appellate. Legislation S 75. 1. Enacted March 11, 1873, as § 84. and tlien aiiplied to countv coni'ts. 3. Amended by Code Amdts. 1880, p. 28, (1) renumbering the section § 75, and (2) changing the words "this court" to "the superior courts." 3. Repeal by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. Jurisdiction, defined. While jurisdiction has been detined to be the power to hear and determine (Hickman v. O'Neal, 10 Cal. 292; Central Pacific R. R. Co. v. Board of § 76. Original jurisdiction. The superior courts sliall have original juris- diction : 1. In all cases in equity; 2. In all civil actions in which the subject of litigation is not capable of pecuniary estimation ; 3. In all cases at law which involve the title or possession of real property. or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars. 4. Of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, of all matters of prolate, of divorce and for annulment of marriage, and of all such special cases ami pro- ceedings as are not otherwise provided for. 5. In all criminal cases amounting to felony, and eases of misdemeanor not otherwise provided for. Said courts shall have the power of naturaliza- tion, 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 per- son in actual custod}^ in their respective counties. Injunctions and writs of prohibition may be issued and served on legal holidays and non-judicial days. actions for relief formerly given in courts of equity; 2. To all civil actions in which the sub- jeet of litigation is not capable of pecuniary esti- mation ; 3. To all civil actions (except actions of forcible entry and detainer) in which the subject of litigation is capable of pecuniary estimation, which involve the title or possession of real estate, or the legality of any ta.x, impost, assess- ment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hun- dred dollars; 4. To all special proceedings not within the jurisdiction of the county and probate courts, as defined in this code; 5. To the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of Jurisdiction of superior court. See Const., art. vi, § 5. Jurisdiction in eminent domain. See post, § 1243. Venue of actions. Post, §§ 392 et seq. Nuisance, Post, § 731. Act conferring upon superior judges powers of probate, district, and county judges. See Stats. 1880, p. 23 (Bancroft ed., p. 115). Legislation § 76. 1. Added by Code Amdts. 18SO, p. 28; based on original code §§57, 85, defining the respective jurisdiction of the district courts and the county courts created by Const. 1849. Original code § 57 read: "The jurisdiction of the district courts extends; 1. To all civil 1 Fair. — 4 §76 SUPERIOR COURTS. 50 its powers; 6. To the trial of all indictments for treason, misprision of treason, murder, and man- slaughter." Original code § 85 read : "Its original jurisdiction extends: 1. To actions to prevent or abate a nuisance; 2. To actions of forcible entry and detainer; 3. To proceedings in insolvency; 4. To all special cases or proceedings in vi^hich the law giving the remedy or authorizing the pro- ceedings confers the jurisdiction upon it; 5. To the issuance of writs of mandate, review, prohi- bition, habeas corpus, and all writs necessary to the exercise of its powers; 6. To inquire, by the intervention of a grand jury, of all public offenses committed or triable in the county; 7. I'o the trial of all indictments, except for treason, mis- prision of treason, murder, and manslaughter." 2. Repeal by Stats. 1901, p. 119; unconstitu- tional. See note ante, § 5. The original § 76 related to the duration of the terms of the district courts. Original jurisdiction. Defining the ju- risdiction of a court limits it (Ex parte Attorney-General, 1 Cal. 85), but the grant of original jurisdiction, without words of exclusion, does not deprive other courts of concurrent jurisdiction. Courtwright v. Bear River etc. Mining Co., 30 Cal. 573; Willis V. Farley, 24 Cal. 490; Stoppelkamp V. Mangeot, 42 Cal. 316; Rosenberg v. Frank, 58 Cal. 387; Learned v. Castle, 67 Cal. 41; 7 Pac. 34. Thus, where jurisdic- tion is conferred on a justice's court in certain eases, the district court is not de- prived of jurisdiction in those cases where the amount in controversy is within its ju- risdiction. Hicks V. Bell, 3 Cal. 219; Yolo County V. Sacramento, 36 Cal. 193; Rosen- berg V. Frank, 58 Cal. 387. Where juris- diction is conferred by the constitution on courts of general jurisdiction, it cannot be taken away by statute. Hicks v. Bell, 3 Cal. 219; Fitzgerald v. Urton, 4 Cal. 233; Caulfield v. Stevens, 28 Cal. 118; Court- wright V. Bear River etc. Mining Co., 30 Cal. 573; Yolo County v. Sacramento, 36 Cal. 193; Stoppelkamp v. Mangeot, 42 Cal. 316. Equitable jurisdiction. Original juris- diction over suits in ecjuity is conferred by the constitution, and any act of the legis- lature seeking to take away that jurisdic- tion, or transfer it to another court, is unconstitutional. Willis v. Farley, 24 Cal. 490; and see Wilson v. Roach, 4 Cal. 362; Clarke v. Perry, 5 Cal. 58; 63 Am. Dec. 82; Griggs V. Clark, 23 Cal. 427. The court, while keeping within the rules and princi- ples upon which equitable jurisdiction is founded, will adapt and apply its jurisdic- tion to such new suits in equity as may arise (Dougherty v. Creary, 30 Cal. 290; 89 Am. Dec. 116; and see Aldrich v. Willis, 55 Cal. 81); and, having the same power in suits in equity as the court of chancery had, it will set aside a judgment for fraud and collusion (Sanford v. Head, 5 Cal. 297), appoint a master to execute a deed for a deceased sheriff (People v. Boring, 8 Cal. 406; 68 Am. Dec. 331), compel the surrender and cancellation of papers (Lewis V. Tobias, 10 Cal. 574), complete the foreclosure of a mortgage after the death of the mortgagee (Belloc v. Rogers, 9 Cal. 123), settle partnership accounts (Griggs V. Clark, 23 Cal. 427), prevent, by injunction, irreparable injury (Lewis v. Tobias, 10 Cal. 574; Pixley v. Huggins, 15 Cal. 127), construe the will of a testator after it had been admitted to probate (Rosenberg V. Frank, 58 Cal. 387; Williams V. W^illiams, 73 Cal. 99; 14 Pac. 394; Sid- dall V. Harrison, 73 Cal. 560; 15 Pac. 130; McDaniel v. Pattison, 98 Cal. 86; 27 Pac. 651; 32 Pac. 805); but it should never en- tertain a suit to construe a will that has been probated, except where there is some special reason for seeking its interpreta- tion. Siddall V. Harrison, 73 Cal. 560; 15 Pac. 130. Testamentary and probate mat- ters are not exclusively under the jurisdic- tion of the probate court; most of the jjowers of the probate court belong pecu- liarly and originally to a court of chancery, and courts of equity still retain jurisdic- tion. Clarke v. Perry, 5 Cal. 58; 63 Am. Dec. 82; Deck v. Gerke, 12 Cal. 433; 73 Am. Dec. 555; Brodrib v. Brodrib, 56 Cal. 563; Rosenberg v. Frank, .58 Cal. 387; Wil- son V. Roach, 4 Cal. 362. In all cases where there are peculiar circumstances of embarrassment, the superior court will assume jurisdiction, in probate matters, to I^revent waste, delay, and expense, and thus conclude the action without vexatious litigation (Deck v. Gerke, 12 Cal. 433; 73 Am. Dec. 555) ; and a guardian's account may be opened by a court of equity, after approval by the probate court (Brodrib v, Brodrib, 56 Cal. 563); and where the pow- ers of the probate court are inadequate to do justice, a court of equity alone can and will afford relief; but it cannot go into an accounting of a copartnership, nor deter- mine the ownership of shares of stock not yet a part of the estate. Raisch v. Warren, 18 Cal. App. 655; 124 Pac. 95. Prohibition. The writ does not lie to restrain the prosecution of an action by citj' authorities to condemn a right of way for public purposes. Bishop v. Superior Court, 87 Cal. 226; 25 Pac. 435; Pacific Railway Co. v. Wade, 91 Cal. 449; 25 Am. St. Rep. 201; 13 L. R. A. 754; 27 Pac. 768. Injunction. One court has no power to interfere with the judgments and decrees of another court of concurrent jurisdic- tion, unless the latter court, by reason of want of jurisdiction, is unable to afford re- lief (Anthony v. Dunlap, S Cal. 26; Revalk V. Kraemer, S Cal. 66; 68 Am. Dec. 304; Chipman v. Hibbard, 8 Cal. 268; Phelan v. Smith, 8 Cal. 520; Gorham v. Toomev, 9 Cal. 77; Uhlf elder v. Levy, 9 Cal. 607; Hockstacker v. Levy, 11 Cal. 76; Crowley V. Davis, 37 Cal. 268; Flaherty v. Kelly, 51 Cal. 145; Porter v. Garrissino, 51 Cal. 559; Wilson V. Baker, 64 Cal. 475; 2 Pac. 253; Buell V. San Francisco Sav. Union, 63 Cal. 292; 4 Pac. 14): a state court cannot enjoin proceedings in a Federal court (Phelan v. Smith, 8 Cal. 520), nor can one superior court restrain another from exe; 51 ORIGINAL JURISDICTION. §76 cuting its orders and decrees. Kickctt v. Johnson, 8 Cal. 'M; Kevalk v. Kraoiner, 8 Cal. 66; 68 Am. Dec. 3U4; Flaherty v. Kelly, 51 Cal. 145; Judson v. Porter, 51 Cal. 562; Wavmire v. San Francisco etc. Ry. Co., 112 Cal. 646; 44 Pac. 1US6. This rule is not based on the personal rights of the parties which they can waive, but upon the rights of courts of co-ordinate ju- risdiction, rhlfelder v. Levy, 9 Cal. 6U7. "With respect to jurisdiction, the sujjerior courts of two different counties of the state stand on the same footing. Kaisch v. Warren, 18 Cal. App. 655;' 124 Pac. 95. The courts of this state cannot restrain persons within the state from prosecuting pending actions in a foreigu or domestic court, except to prevent a multiplicity of suits (Spreckels v. Hawaiian Commercial etc. Co., 117 Cal. 377; 49 Pac. 353); but the rule that one court will not restrain another does not extend to actions re- straining sales of land under execution, as such actions are not against the court (Pixley V. Huggins, 15 Cal. 127); nor does this rule extend to proceedings which, by law, are required to be brought in a par- ticular county; for if brought in the wrong county, the court has no jurisdiction. L'hl- felder v. Levy, 9 Cal. 607. Proceedings to restrain execution should be instituted in the court rendering the judgment. Crow- lev V. Davis, 37 Cal. 268; Wilson v. Baker, 64 Cal. 475; 2 Pac. 253; Buell v. San Fran- cisco Savings Union, 65 Cal. 292; 4 Pac. 14; Wavmire v. San Francisco etc. Rv. Co., 112 Cal.''646; 44Pae. 1086. Title to and possession of real estate. The superior court has original jurisdic- tion of all questions pt-rtaiuing to the title to or the possession of real pro]iorty; and, having jurisdiction of the parties in an ap- peal from a justice's court, may properly try an issue as to the right of possession of land. Hart v. Carnall-Hopkins Co., 103 Cal. 132; 37 Pac. 196. Where the right of recovery depends upon whether the de- fendant had a defective or a good title to land, the case in\olves title to land, and the superior court has jurisdiction. Coper- tini V. Oppermann, 76 Cal. 181; 18 Pac. 256. Tax, impost, assessment, etc. The supe- rior court has jurisdiction in cases involv- ing less than three hundred dollars, where the legality of a tax, impost, assessment, toll, or municipal fine is involved. Williams V. Mecartney, 69 Cal. 556; 11 Pac. 186; Bottle Mining Co. v. Kern, 154 Cal. 96; 97 Pac. 25. An action to recover a penalty for exacting illegal toll does not, however, give the court jurisdiction, regardless of the amount involved (Brown v. Rice, 53 Cal. 489); neither does an action to re- cover unpaid taxes (People v. Mier, 24 Cal. 61; Bell v. Crippen, 28 Cal. 327; People v. Olvera, 43 Cal. 492) ; but where the action is for the purpose of enforcing a tax lien by sale of the property, it is an equitable action, and the superior court has jurisdic- tion, reganlloKs of the amount. Pcoi)le v. Mier, 24 Cal. 61; People v. Olvera, 43 Cal. 492; Mahlstadt v. Blanc, 34 Cal. 577. An action against an assessor for a wrongful and malicious act is not within the juris- diction of the superior court, unless the amount involved is three hundred dollars. Perkins v. Ralls, 71 Cal. 87; 11 Pac. 860. Amount in controversy. Jurisdiction is determined by the amount for which judg- ment is asked, and not by the averment of damage. Sanborn v. Superior Court, 60 Cal. 425. The ad damnum clause is the test of the jurisdiction. Maxfield v. .John- son, 30 Cal. 545; Greenbaum v. Martinez, 86 Cal. 459, 461; 25 Pac. 12. The demand of the complaint, regardless of the find- ing, is the test of jurisdiction for the value of property claimed. J. Dewing Co. v. Thom].son, 19 Cal. App. 85; 124 Pac. 1035. While the amount claimed by the plaintiff in the suit is the test of the juris- diction of the court (Solomon v. Reese, 34 Cal. 28; Tulare v. Hevren, 126 Cal. 226; 58 Pac. 530), yet it does not conclude that question, regardless of the allegations upon which the liability is founded. Lchnhardt V. .Jennings, 119 Cal. 192; 48 Pac. 56; 51 Pac. 155. Costs constitute no part of the amount in controversy, and are not in- cluded for the purpose of making the jurisdictional amount. Maxfield v. John- son, 30 Cal. 545; Zabriskie v. Torrev, 20 Cal. 173; Votan v. Reese, 20 Cal. 89. ' The superior court has no jurisdiction of an action upon a note for two hundred dol- lars, though the principal and interest ex- ceeerty which it distributes (Estate of Dunn, I\lyr. Prob. 122); but it may delay the final de- cree until the rights of the parties can be determined in another forum. Estate of Burdick, 112 Cal. 387; 44 Pac. 734. Nor has the probate court jurisdiction to in- quire into the consideration or valiility or operation of a deed of sejiaration between a testator and his Avidow. Corker v. Corker, S7 Cal. 643; 25 Pac. 922. The court which granted' administration upon the estate of a person supposed to be de- ceased, but w^ho afterwards appears, has power to vacate the order and annul the proceedings (Stevenson v. Superior Court, 62 Cal. 60), but it has no power, after the vacation of probate proceedings, to make an'v order in the ])renuses. Costa v. Supe- rior Court, 137 Cal. 79; 69 Pac. 840. Criminal cases. The superior court has original jurisdiction in habeas corpus cases, and in all criminal cases amount- ing to felony (Ex parte Williams, 87 Cal. 78; 24 Pac. 6U2; 25 Pac. 248; Smith V. Hill, 89 Cal. 122; 26 Pac. 644; Peo- ple V. Colby, 54 Cal. 184), and in cases of misdemeanor not otherwise provided for. In re Grosbois, 109 Cal. 445; 42 Pac. 444; Green v. Superior Court, 78 Cal. 556; 21 Pac. 307, 541; People v. Joselvn. SO Cal. 544; 22 Pac. 217; In re Marks, 4o Cal. 199; People V. Lawrence, 82 Cal. 182; 22 Pac. 1120; Ex parte Wallingford, 60 Cal. 103; Gafiford v. Bush, 60 Cal. 149; Ex parte Noble, 96 Cal. 362; 31 Pac. 224. The legis- lature has "not otherwise provided for" the following misdenieanors, and the su- perior court has original jurisdiction in such cases: 1. Assaults or batteries com- mitted upon public officers in the dis- charge of their duties; 2. Willful injuries to property; and 3. When the punishment is by fine exceeding five hundred dollars, or by imjirisonment exceeding six months, or both. In re Grosbois, 109 Cal. 445; 42 Pac. 444; Thomas v. Justice's Court, 80 Cal. 40; 22 Pac. 80. The superior court also has jurisdiction of crimes which may be punishable either as a felony or a mis- demeanor; such as obtaining money by false pretenses (Ex parte Neustadt, 82 Cal. 273; 23 Pac. 124), assault by means likely to produce great bodilv injury (Peo- ple V. Fahey, 64 Cal. 342; 30 Pac. 1030). a public nuisance injurious to health (Appli- cation of Kurtz, 68 Cal. 412; 9 Pac. 449); but the jiresentment of a misdemeanor, of which the justice's court has jurisdiction by indictment, does not give the superior court jurisdiction. Ex jiartc Wallingford, 60 Cal. 103; Green v. Superior Court, 78 Cal. 556; 21 Pac. 307, 541. The jurisdic- tion of the su})erior court over a criminal case is not dependent upon a compliance with the provisions of § 925 of the Penal Code. People v. Delhantie, 163 Cal. 461; 125 Pac. 1066. Original writs. Mandamus. The superior court, and a judge thereof, has original jurisdiction to issue mandamus, certiorari, ]irohibition, quo warranto, and habeas cor- j)us (Perry v. Ames, 26 Cal. 372; Reynolds V. County Court, 47 Cal. 604; Spring Val- ley Water Works v. Bryant, 52 Cal. 132; Garretson v. Board of Supervisors, 61 Cal. 54), and may issue such writs to run out of the county in which the court is held. Kings County v. Johnson, 104 Cal. 198; 37 Pac. 870. Quo warranto. The mode of proceeding in quo warranto has not, in modern times, been very uniform; but in this state, if the proper parties are before the court,, the action may be brought in the name of the attorney-general. People y. Dashaway Ass'u, 84^ Cal. 114; 12 L. R. A. 117; 24 Pac. 277. Habeas corpus. The superior court has jurisdiction, in habeas corpus, to test the legality of the imprisonment of one held under authority of the Avarrant of the gov- ernor of the state for the purposes of extradition (In re Robb, 64 Cal. 431; 1 Pac. 881; In re Manchester, 5 Cal. 237) ; but the only thing that can be inquired into is, whether the prisoner is projierly detained, under the constitution 'and laws (In re Manchester, 5 Cal. 237); and the judges of the superior court have the same authority as the supreme court would have, under a writ issued bj' the supreme court, and made returnable before a judge of the su- })erior court. People v. Booker, 51 Cal. 317; Ex parte Marks, 49 Cal. 680. CODE COMMISSIONERS' NOTE. 1. Construc- tion of this section. Section (i of article vi of • the onstitution, which defines the .iurisdiction of the district court, follows the language (so far as civil jurisdiction is concerned) of § 4 of the same article relating to the jurisdiction of the su- preme court, and it must, from the very nature of things, receive the same construction. AVe would look in vain, giving to its terms their ordi- nary import, for any power or autliority over that large class of cases in which the subject of liti- gation is incapable of pecuniary estimation, and which did not fall within the jurisdiction of courts of eouity, or over that other class known as special proceedings, or for the power to issue writs of certiorari, mandamus, or prohibition. The truth is, that the amendments of 1802. in so far as they attempt to lix and define the juris- diction of the several courts of record, were so framed that to have given their terms any fair or reasonable construction, would have emasculated our whole judiciil system. To support this propo- sition we need but refer the lawyer to the terms of those amendments, and invoke a comparison between the power there conferred and the power now exercised by our courts of record, and to the §76 SUPERIOR COURTS. 54 same end ■n-e need but refer the layman to the case of Knowles v. Yates, cited and quoted from at length in the note to § 44, [§ 52,] ante, and to the able and elaborate opinion of Justice Rhodes, in Courtwrighl v. Bear River etc. Mining Co., 30 Cal. 578. In the latter case, said the learned jus- tice, speaking for the court: "It is a matter of some doubt whether that article [article vi, be- fore the amendments] deserved the commendation of having been drawn with great skill, . . . but there is less question that the same cannot be said of the article [article vi] as it now stands." See also Perry v. Ames, 26 Cal. 383. The su- preme court, "by judicial construction, has fixed the limit of the jurisdiction of the different courts. From the very necessities of the case that tribu- nal was driven to the adoption of the broadest rules of constitutional construction. Indeed, it may well be doubted whether any rule, save that of "necessity which knows no law," could have been invoked to work out the results at which our courts have arrived. We have referred to these matters at some length in this and the note to § 44, [§ 52.] ante, in order to present the in- herent difficulties surrounding the subject, and to call the special attention of the profession to the questions involved. 2. No appellate jurisdiction. The legislature has no power lo confer appellate jurisdiction on district courts. Clary v. Hoagland. 6 Cal. 688; Townsend v. Brooks, "5 Cal. 52; Caultield v. Hud- son, 3 Cal. 389; Zander v. Coe, 5 Cal. 230. The district court has no appellate jurisdiction. The legislature cannot provide for appeals from in- ferior courts to the district court. People v. Per- alta, 3 Cal. 379; Caulfield v. Hudson, 3 Cal. 389; Hernandes v. Simon, 3 Cal. 464; Gray v. Schupp, 4 Cal. 185; Reed v. ]\IcCormick, 4 Cal. 342; Townsend v. Brooks, 5 Cal. 52. Xo appellate ju- risdiction exists, even from wrobate courts. Reed V. McCormick, 4 Cal. 342; Pond v. Pond, 10 Cal. 495. Xor can a district court review proceedings in a justice's court, if the error complained of might have been corrected by an appeal to the county court. Gray v. Schupp, 4 Cal. 185. 3. Admiralty jurisdiction. District courts have admiraltv jurisdiction pro tanto (post, §§ 813 et seq). Averill v. The Hartford, 2 Cal. 308. 4. Jurisdiction of mining claims. Although ju- risdiction of mining claims is given to justices of the peace, '.hat of the district court remains un- affected, if the amount in controversy exceeds two hundred [now three hundred] dollars. Hicks v. Bell, 3 Cal. 224. 5. Loses jurisdiction of decided cause after ad- journment for term. A court loses all power over a cause upon the adjournment of the term, and cannot disturb its judgments, except in cases provided bv the statute. Suydam v. Pitcher, 4 Cal. 280; Whipley v. Dewey, 17 Cal. 314. 6. Jurisdiction by appearance. An appearance entered by attorney is a good and sufficient ap- pearance to bind the party. Such appearance amounts to an acknowledged waiver of service. Suydam v. Pitcher, 4 Cal. 2 80. 7. Actions to abate nuisance. District courts have jurisdiction in actions to abate nuisances. An act giving jurisdiction of cases of nuisance to the county court cannot avail to take away the jurisdiction given to the district courts by the constitution. Fitzgerald v. Urton, 4 Cal. 235. District and county courts, under the amended constitution, have concurrent jurisdiction in _ ac- tions to abate nuisance. Courtwright v. Bear River etc. Mining Co., 30 Cal. 576; Yolo County v. Sac- ramento, 36 Cal. 193. An action to abate a nui- sance is a case in equity, and the district court has jurisdiction thereof, without regard to the amount in controversy. Courtwright v. Bear River etc. Mining Co., 30 Cal. 573. And county courts have concurrent jurisdiction in these cases. People V. Moore, 29 Cal. 427. District courts have ju- risdiction in onses of nuisance, and because an act gives jurisdiction in like cases to the county court it does not avail to take away the jurisdiction of the district court in these matters. Fitzgerald v. Urton, 4 Cal. 235. But it was decided that county courts did not have jurisdiction in actions to aliate a nuisance. Parsons v. Tuolumne County Water Co., 5 Cal. 43: 63 Am. Dec. 76; see, however, People V. Day, 15 Cal. 91. 8. Forcible entry and unlawful detainer. Dis- trict courts have no jurisdiction in actions of forcible entry and unlawful detainer. Townsend v. Brooks. 5 Cal. 52. 9. Removal of causes from one district to an- other. The district court is a court of general original jurisdiction. Its process is coextensive with the state. Causes may be removed from one district or county to another county or district in the manner provided by statute. But this would not be permitted after the party had ap- peared and answered to the merits. Reyes v. Sanford, 5 Cal. 117. 10. Verity of records. Correction of records. An application for mandamus was made to compel a district judge to sign what was alleged by ap- plicant as a true bill of exceptions, which the judge refused to sign. The judge, in answer, stated he did sign a bill of exceptions, which he believed to be correct. Applicant claims the right to try the issue by a jury. Held, such issues could not be tried by jury. The record of a dis- trict court cannot be corrected by the verdict of a jury. Courts of such extended jurisdiction and grave responsibility as the district courts must be trusted as to the fidelity of their own records People V. Judge Tenth Judicial District. 9 Cal. 19 11. Cannot restrain courts of co-ordinate juris diction. District courts cannot restrain the exe cution of the judgments or orders of courts of co ordinate jurisdiction. All such proceedings mus be had in the courts having control of such judg ments. Gorham v. Tooriiev, 9 Cal. 77; see also Uhlfelder v. Levy, 9 Cal. 607. 12. Chancery supervision over and control of minors. District courts have the same control over the persons of minors, as well as their estates, that the courts of chancery in England possess. The jurisdiction is conferred by the constitution, and cannot be divested by any legislative enact- ment. Wilson V. Roach. 4 Cal. 366. 13. Issues sent up formerly from probate courts. Power of district court over issues sent up from probate courts, and over testamentary and pro- bate matters generallv, see Pond v. Pond. 10 Cal. 495; Deck v. Gerke," 12 Cal. 433; 73 Am. Dec. 555: Hope v. Jones. 24 Cal. 89. The necessary provisions for trials in the probate court are now made. 14. Supervision over inferior tribunals. The general power of supervision over inferior tri- ijunals which pertains to the court of king's bench in England pertains to the district courts of this state. Miliken v. Huber, 21 Cal. 169; Gurnee v. Maloney, 38 Cal. 85; 99 Am. Dec. 352. 15. Action for charging excessive railroad fare. Jurisdiction of district court in certain actions provided for by statute ; forfeitures imposed on railroad company for charging passengers excess of fare (see Stats. 1863, p. 296). Reed v. Om- nibus R. R. Co., 33 Cal. 212; Smith v. Omnibus R. R. Co.. 36 Cal. 281. 16. District court to enter judgment prescribed by supreme court. When the district court is directed by the supreme court to enter a certain judgment, its duty is to enter a judgment in con- formity with the order of the supreme court. Argenti v. Sawyer, 32 Cal. 414. It cannot even add interest to the judgment so ordered. Meyer V. Kohn. 33 Cal. 484. 17. Judgment of district court to meet the ex- igencies of the case. District courts have power, when not expressly limited by the constitution or by a statute, to pronounce such judgment as the exigencies of each case require. Stewart v. Levy, 36 Cal. 160. 18. Court to direct payment of fees to indigent witnesses in criminal cases. District courts may, in a criminal case, when witness is poor or has come from another county, direct the county treas- urer to pay the witness such a sum as the court may name. Sargent v. Cavis, 36 Cal. 552. 19. Judgment of district court, only void when In excess of jurisdiction. When the district court has jurisdiction of the person of the defendant and of the subject-matter of the action, its judg- ment, no matter how erroneous, is not void. A judgment of a justice's court which was in excess of its jurisdiction, and therefore void, was ren- dered, and the district court rendered a judgment 55 ORIGINAL JURISDICTION. §70 founded upon the judgment rendrred by the jus- tice of the peace. Held: that thoui;h the jiulc- meut of thr district court was crroiioous, yet it was not viiid, and that it was valid ajraiust a col- lateral attack. Muoro v. Martin, .'iS Cal. 4?.C,. 20. Stipulation cannot confer jurisdiction. See Wicks V. Ludwif,', 9 Cal. 173. A stipulation by parties, waivinir all objections to jurisdiction, cannot confer on a district court jurisdiction to try a suit in one county, when on that day. by operation of law, the court is adjourned in that county and its term commenced in another county of that district. IJates v. Gage, 40 Cal. 183. 21. Jurisdiction over actions for usurpation of office, franchise, etc. Title to oflice comes from the will of the people as expressed through the ballot-box, and they have a prerogative right to enforce their will, when it has been so expressed, by excluding usurpers, and jnitling in power such as have been chosen by themselves. For that purpose the attorney-general, either upon his own suggestion or upon the complaint of a private party, may brin<' an action against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within the state. The district court has jurisdiction in these cases. People v. Holden, 28 Cal. 123. See also County Court Ju- risdiction in Contested Elections. 22. Disposal of community property by one district court, when divorce Tras granted in an- other court. Another court than the one decree- ing a divorce may acquire jurisdiction to dispose of the community property if it be otherwise competent. De Godey v. Godey, 39 Cal. 157. 23. Custody of children, alimony, etc., in such a case. \\ here a wife sued for divorce, the judge of the court where the suit was pending had no jurisdiction, "pending the action, to hear and determine in the district court of .in adjoin- ing county of the same district an application by the wife for an allo\vance pendente lite, and for the care and custody of the children of the mar- riage." Bennett v. Southard. 35 Cal. 691. An order for alimony and for the custody of the children, pendente lite, can only be made by the court in which the action for divorce is pending. Id. 24. Supervision over decrees, orders, etc., of Inferior tribunals. Correction of decrees f'-audu- lently entered. It was held that the district judge, whilst sitting as in an eejuitj' case, is pos- sessed of all the powers of a court of chancery. The district court, being a court of general juris- diction, can, in a case in equity, where fraud and collusion are charged against a judge in entering an order or decree, review the same, and annul it if the facts justify such a conclusion. Unless a court of general jurisdiction possessed such a power over limited and inferior tribunals, such as probate courts, the rights of heirs and orphans might be at any time endangered without remedy. Sanford v. Head, 5 Cal. 297. 25. Fraud, accident, mistake, etc. The juris- diction of courts of equity originally embraced all cases involving questions of fraud, accident, or confidence. In many cases of this sort, courts of common law have for a long time exercised jurisdiction, and in many other cases, in which anciently no such remedy was allowed, is now ex- panded so as to reach them : but the jurisdiction of courts of equity is not destroyed or impaired merely because courts of law exercise an equitable jurisdiction : jurisdiction in such cases is concur- rent. People V. Houghtaling. 7 Cal. 348. 26. Suit against administrator. It was held that an administrator might be sued in the dis- trict court as a court of equity, by the people, to compel him to pay over certain moneys which were collected by the intestate as a tax-collector. See People v. Houghtaling. 7 Cal. 348. The dis- trict court has no jurisdiction over an action against an administrator when he attempts to make charges a?'ainst the estate for expenses in administering thereon. See Gurnee v. Maloney, 38 Cal. 85; 99 Am. Dec. 352. 27. Jurisdiction over claims against estate of de- cedent. The fact that a claim against the estate of a deceased person has not been presented to the administrator does not take away from the dis- trict court jurisdiction over such claim. Hentsch V. Porter, 10 Cal. 555; see Fallon v. liutler, 21 Cal. 24; Xl Am. Dec. 14(1. commentinir on the cases of Ellissen v. Halleck, 6 Cal. 380, and Falkner v. Folsom's Exrg., 6 Cal. 412; see also I'echaud v. Kinquci, 'J 1 Cal. 7t). The district court has no jurisdiction over the allowance or aijportionment of tlie commissions of the executors and administrators, and if it can interfere at all with the decree of the probate court, it'can only do so as a court of chancery, and can go no further than to set aside the decree on the ground of fraud, or other like ground of equitable inter- ference, and leave the parties to make another settlement in the probate court. Searles v. Scott, 14 Sm. & M. (Miss.) 94; Hope v. Jones. 24 Cal. 89. 28. Foreclosure of mortgages upon estate of de- cedent. District courts have jurisdiction over an action for the foreclosure of mortgages upon the estates of decedents, even though the debt was presented as a claim against the estate to the administrator or executor, and allowed by him and also by the probate judge. If the object sought to be attained is to subject the lands mortgaged to sale for the satisfaction of the debt, and no judgment is asked to bind the estate or for the payment of any moneys out of the estate (overruling Ellissen v. Halleck. 6 Cal. 336, and Falkner v. Folsom's Exrs., 6 (^Jal. 412). Fallon V. Butler, 21 Cal. 24; 31 Am. Dec. 140; see also Pechaud v. Rinquet, 21 Cal. 76. In some of the earlier cases it was held that a mortgage cred- itor whose claim was allowed could not maintain an action in the district court for the foreclosure of his mortgage, but that his debt must abide the administration and settlement of the estate under the supervision of the probate court. Ellissen v. Halleck, 6 Cal. 392; Falkner v. Folsom's Exrs., 6 Cal. 412. But the doctrine of these cases in this respect may be said to have been disapproved by the court in its later decisions, mainly, if not entirely, on the ground that the district court had, under the constitution as it then existed, original jurisdiction in law and equity in all cases where the amount in dispute exceeded two hun- dred dollars, exclusive of interest. Belloc v. Rogers, 9 Cal. 123; Hentsch v. Porter, 10 Cal. 559; Fallon v. Butler, 21 Cal. 30; 81 Am. Dec. 140. By the constitution as amended, it is pro- vided that th* district courts shall have original jurisdiction in all cases in equity. Const., art. vi, § 6. The foreclosure of mortgages and the sales of premises for the payment of debts there- by secured are matters of purely equitable cogni- zance. Hence, a creditor of an estate of a dece- dent whose debt is secured by mortgage may, after having duly presented if to the executor or administrator and probate judge, whether it be allowed or rejected, proceed at once to foreclose his mortgage in the proper court of original equitable jurisdiction. Willis v. Farley, 24 Cal. 491. 29. Equitable and complete relief to be admin- istered. It is the duty of the court, as a court of equity, while keeping within the rules and principles on which its remedial jurisdiction is founded, to adapt its course of proceeding, as far as possible, to the existing state of things, and to apnly its jurisdiction to all those new cases which, from the diversified transactions among men, are continually arising, and to ad- minister justice and enforce right, for which there is no remedy save in a court of equitv. Tavlor V. Salmon, 4 Myl. & C. 141 ; Walworth v. Holt, Id. 635; Dougherty v. Creary, 30 Cal. 297; 89 Am. Dec. 116. See this case as to mining mat- ters, abandonment of water, on tailings, etc. 30. Enjoining erection of wharves, etc. The equity jurisdiction with which our district courts are invested under the constitutin:i is that ad- ministered in the high court of chancery in Eng- land. People v. Davidson, 30 Cal. 390; and see this case as to power of district courts to enjoin erection of wharves, public nuisance, and as to its equity powers generally. Id. 31. Annulment of decree of county court con- demning land. Powers of district court as a court of equity to annul condemnation of land for certain uses, had by order of county court. See 77. 78 SUPERIOR COURTS. 56 San Francisco etc. Water Co. v. Alameda Water Co., 36 Cal. 63-9. 32. Title or possession of real property. Con- struction of the phrase, "The district court shall have orijrinal Jurisdiction in all cases at law •which involve the title or possession of real property." See Holman v. Taylor, 31 Cal. 338. It was "held that it was not necessary, however, that the title or possession be put in issue, if either is alleged in the pleadings on either side; as an issuable fact it is sufficient to give the dis- trict court jurisdiction. Actions for damages without reference to the amount for trespass upon lands, are within the jurisdiction of the district court. Holman v. Taylor, 31 Cal. 338. But this case was materially modified by the same justice, in Pollock v. Cummings, 38 Cal. 684; see, too, Doherty v. Thayer, 31 Cal. 144; see note to § 114, [§ 112,] post, "Justices' Courts." Two actions were commenced in a justice's court to recover damages to real prop- erty. The amount claimed was two hundred dol- lars. The answer of the defendants put in is- sue the ownership of the property, and moved to transfer the cases to the district court. The motions were overruled. On appeal to the county court the order was made granting transfer to the district court. Held: the county court had authority to transfer the cases to the district court, under § 838 (§ 581) of the code. The fact that the title of the property was involved, and not the amount claimed in damages, established the jurisdiction cf the district court. Cullen v. Langridge, 17 Cal. 67. 33. Legality of any tax, impost, assessment, etc. In People v. Mier. 24 Cal. 61, the supreme court held that in actions to recover taxes (under the somewhat anomalous condition in which the law then stood: Revenue Laws 1861—62). the character of the action, as to whether it was a case at law or in equity, must be determined by the relief sought in the prayer of the complaint; and that when the amount of the taxes sued for was less than three hundred dollars, and there was no prayer for the foreclosure of the tax lien, order of sale, etc., the district court had no ju- risdiction. Adhered to in Bell v. Crippen. 28 Cal. 327. If the defense set up in an answer in- volves the legality of the tax Hn an action in a justice's court, brought for the recovery of_ a money judgment), the jurisdiction of the justice would be ousted on the tiling of the answer. PeoTile V. Mier, 24 Cal. 61. 34. Value or amount of property in contro- versy. Before the amendments to the state con- stitution (adopted 1862), the district court had jurisdiction, where the amount sued for. exclusive of interest, exceeded two hundred dollars. Ar- nold V. Van Brunt, 4 Cal. 89; Page t. Ellis, 9 Cal. 248. But a judgment could be rendered for a less amount than the sum prescribed by the constitution, limiting the jurisdiction of the court in the commencement of the action. Jackson v. Whartenby, 5 Cal. 94. In actions for the recov- ery of money, the district courts have jurisdic- tion, if the demand in the complaint, exclusive of interest, amounts to three hundred dollars. Solomon v. Keese, 34 Cal. 32; see particularly note 6, § 44, [ S 52,] ante. 35. Insolvency proceedings. Proceedings in in- solvency (state law) are not. stricti juris, either proceedings in law or equity, but a new remedy or proceeding, created by statute, the administra- tion of which has been vested in the district courts of this state, independently of their com- mon-law or chancery powers, as courts of gen- eral jurisdiction: and second, wherever a new right is created by statute, and the enforcement of such right is committed to a court even of general original jurisdiction, that such court, quoad hoc, is an inferior court, and must pursue the statute strictly. The district court acts as a court of limited or inferior jurisdiction in these matters. Cohen v. Barrett, 5 Cal. 195. 36. Writs of mandate. District courts have jurisdiction to issue writs of mandate. Perry v. Ames, 26 Cal. 372; Cariaga v. Dryden. 30 Cal. 246: Courtwright v. Bear River etc. Mining Co., 30 Cal. 573. 37. Writ of review (certiorari). District courts have not jurisdiction, by certiorari (writ of re- view), over the judgment rendered in a justice's court in cases where the error might have been corrected by an appeal to the county court. Gray V. Schupp. 4 Cal. 185. When district courts have jurisdiction to review cases by certiorari (or writ of review), see People v. Hester, 6 Cal. 680 (and cases cited in brief of petitioner) ; see further. Chard v. Harrison, 7 Cal. 113; and People V. El Dorado County Supervisors, 8 Cal. 58, over- ruling People V. Hester, supra; also examine Mur- ray V. Board of Supervisors, 23 Cal. 492 : Perry V. "Ames, 26 Cal. 372; Morley v. Elkins, 37 Cal. 454 : see also, on habeas corpus. Perry v. Ames, 26 Cal. 372. 38. Formation of new districts. Jurisdiction over causes arising previous to formation of dis- trict. Where a new county is created or a new district is formed by statute, the district court of the new county or (of the new district) has jurisdiction to try all indictments for murder found in the county court of the old county, but committed in the new county after the passage of the act creating such new county, provided the trial is not had until the new county or district is organized. See People v. McGuire, 32 Cal. 140. § 77. Appellate jurisdiction. The superior courts shall have appellate justices' and other inferior courts in escribed bv law. jurisdiction in such cases arising in their respective counties as may be pr Appellate jurisdiction. See Const., art. vi, § 5. Appeals to superior court. See post, §§ 974-980. Legislation § 77. 1. Added by Code Amdts. 1880. p. 28, to conform to Const. 1879. 2. Repeal by Stats. 1901, p. 119; unconsti- tutional. See note ante, § 5. Original § 77, "Adjournment of [district] court." Appellate jurisdiction. This section lim- its the appellate jurisdiction of the superior court to the extent and mode prescribed. (Sherer v. Superior Court, 9-1 Cal. 354; 29 Pac. 716): the court has appellate jurisdic- tion only as prescribed by law. People v. Treadwell, 66 Cal. 400; .5 Pac. 6S6; Shealor V. Superior Court, 70 Cal. 564; 11 Pac. 653. CODE COMMISSIONERS' NOTE. [§ 57, origi- nal code.] No appellate jurisdiction. The legis- lature has no power to confer appellate jurisdic- tion on district courts. Clary v. Hoagland, 6 Cal. 668; Townsend v. Brooks, 5 Cal. 52; Caulfield v. Hudson, 3 Cal. 389; Zander v. Coe, 5 Cal. 230. The district court has no appellate jurisdiction. The legislature cannot provide for appeals from inferior courts to the district court. People v. Peralta, 3 Cal. 379; Caulfield v. Hudson, 3 Cal. 389; Hernandes v. Simon, 3 Cal. 464; Gray v. Schupp, 4 Cal. 185; Reed v. McCormick, 4 Cal. 342; Townsend v. Brooks, 5 Cal. 52. No appel- late jurisdiction exists even from probate courts. Reed v. McCormick, 4 Cal. 342; Pond v. Pond, 10 Cal. 495. Nor can a district court review pro- ceedings in a justice's court if the error com- plained of might have been corrected by an appeal to the county court. Gray v. Schupp, 4 Cal. 185. § 78. Process. The process of the superior courts shall extend to all parts of the state ; provided, that all actions for the recovery of the posses- sion of, quieting the title to, or for the enforcement of liens upon real estate, , shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated. 57 TRANSFER OF ACTIONS — JUSTICES' COURTS, §§ 79-85 Processninsthroughoutstate. Const., art. vi, § 5. Process nuis throughout State. "Raiscli V. Place of trial. Const., art. vi. § 5; post. S a!)2. ^VMtr.M,. IS (':,1. App. iuu,; ll'4 Vac. [):,. Legislation s 78. 1. Added by Code Anidts. Veiiue Of actions affecting real property *1f.**l\'ip..albv stats. 1901, p. 119; unconsti- i« "' any county in which part of the lan.i tutioniil. See note anti", § 5. aiicctorl by the action IS situateil. Kim- Til. • original § 78 was entitled "Jud-ments may 1,;,11 v. Tripp, i:i() ('al. G.'H ; 6'J Pac. 42S. be entered in vacation." § 79. Transfer of books, papers, and actions. All records, books, papers, causes, actions, })i'()cee(Iiii<;-s, and appeals lod^'ed, deposited, or pendiii<>: i'l the district court or courts, county court, probate court, inunicii)al criminal court, or municipal court of appeals, of, in, or for any county, or city and county, of the state, abolished by the constitution, are transferred to the superior court of such county, or city and county, which has the same power and jurisdic- tion over them as if they had been in the first instance lodged, deposited, filed, or commenced therein, or, in cases of appeal, appealed thereto. Transfer of books, papers, and actions. See 2. Repeal by Stats. 1901, p. 119; unconsti- Coiisl., ,'irt. XX, § 3; ante, §§ .")5. .^fi. tutinnal. See niite ante, § 5. Act conferring upon superior court powers of Judicial officers. Justices of the peace former courts. See Stats. 1880. p. 2?,. „„ . .. . , . , . ' . Act transferring to superior court business, ^.^^ judicial ofhcers, within tiie eon.stitu- etc, of former courts. See Stats. 1880. p. 2. tion. Kahn v. Sutro, 114 Cal. 316; 33 L. K. Legislation § 79. 1. Added by Code Amdts. ^J .^-^A 1^' ^^^A^' ^^ ^^ Mitchell, 120 Cal. ISSO, p. 28. 3S4; d2 Pac. (99. CHAPTER V. JUSTICES' COURTS. Article T. Justices' Courts in Cities and Counties. §§ 82-98. II. .Justices' Courts in Townships. §§ 99-109. III. Justices of the Peace and Justices' Courts in General. §§ 110-119. ARTICLE I. JUSTICES' COURTS IN" CITIES AND COUNTIES. Payment of fees. Certificates, transcripts, and other papers. Justices' docket. Territorial extent of jurisdiction. Practice and rules. Attorney. Who shall not act as. Salaries. What justices successors of others. Repealed.] Legislation S§ 82, 83. 84. 1. Enacted March 2. Repealed by Code Amdts. 1880, p. 21, in 11, 18 73, and related to county courts. amending Part I. § 85. Justices' courts and justices. There shall be in every city and count}^ of more than four hundred thousand population a justice's court for Mdiieh five justices of the peace shall be elected by the qualified electors at the general state election next preceding the expiration of the terms of office of their predecessors. Any of said justices may hold court and there may be as many sessions of said court at the same time as there are justices thereof. Said justices shall choose one of their number to be presiding justice who may at any time be removed and another appointed in his place by a vote of a majority of them ; providing, that in the case of the temporary absence or disability of the presiding justice, any one of the other justices, to be designated by the presiding justice, may act as presiding justice dur- ing such absence or disability. Each justice of the peace so elected must at the time of his election be an elector of such city and county, and qualified to practice in all the courts of this state. 82. fRelnted to county courts. Repealed, . § 91. §§ S3, 84. Same.] § 92. 85. .Justices' courts and justices. § 93. 86. Clerks of justices' courts. § 94. 87. Sheriff and deputies. § 9.5. 88. Offices and office hours. § 96. 89. Actions. § 97. 90. Reassignment and transfer of actions. § 98. §§ 82, 83, 84. [Related to county courts. §§86,87 justices' COURTS. 58 Justices, number, etc. Const., art. vi, § 11. thousand population" for "one hundred thousand Justices' courts. Compare §§ 103. 110, post. population," and (c) striking out "of such city and Act organizing San Francisco justices' court county" after "qualified electors"; (2) in second (Stats. 1865-66, p. 423; 1869-70, p. 56; 1871- sentence, striking out "one" after "Any"; (3) in 72, p. 758) governed before 1880. third sentence, (a) striking out "The" as the ■ , 1- o r,= .. . jj J 1, <-i J A J4. initial word of the sentence, and (b) adding "the" legislation § 85. 1. Added by Code Amdts. before "case" ; (4 ) adding the final sentence. 1880. p. -9. ^n.^c: i a a n /i\ •„ The orisinal§85 defined the original jurisdio 2. Amended by Stats 1915, p 1440 (1) in tion of countv courts. first sentence, (a) substituting four hundred § 86. Clerks of justices' courts. The supervisors of such city and county shall appoint a justices' clerk on the written nomination and recommenda- tion of said justices, or a majority of them, Avho shall hold office during good behavior, and who shall receive a salary of three thousand dollars a year. Said justices' clerk shall take the constitutional oath of office, and give bond in the sum of ten thousand dollars for the faithful discharge of the duties of his office, and in the same manner as is or may be required of officers of such city and county. A new or additional bond may be required by the supervisors of such city and county, and in such amount as may be fixed by said supervisors, whenever they may deem it necessary. The said clerk may appoint a chief deputy and a cashier, each at a salary of eighteen hundred dollars a year, and three deputy clerks and one messenger each at a salary of fifteen hundred dollars a year. Said justices' clerk, and each of said appointees shall have authority to administer oaths, take and certify affidavits and issue and sign writs, summons, and all other processes, in any action, suit or proceeding in said justices' court, and generally to do all the acts specified in sections one hundred and two and one hundred and two a of this code. They shall be at their respective offices for the dispatch of official business daily, except Sundays, holidays and Saturday afternoons, from the hour of nine o 'clock a. m. until five o 'clock p. m. The salaries of said justices' clerk and his appointees shall be paid out of the treasury of said city and county in the same manner that salaries of officers of such city and county are paid, and shall be in lieu of all fees collected by them, and all persons appointed to such positions shall, after they have served a period of six months in their respective positions, be entitled to all the benefits of the civil service laws of this state. Legislation § 86. 1. Added by Code Amdts. pleasure of said clerk. Said justices' clerk and 18SO, p. 29. deputy shall have authority to administer oaths, 2. Amended by stats. 1915, p. 58, (1) in first and take and certify affidavits in any action, sentence, substituting the final clause for "who suit, or proceeding in said justices' court." shall hold office for two years, and until his sue- The amending act of 1915 contained a repeal- cessor is in like manner appointed and qualified"; ing clause, reading, "Sec. 2. All acts or parts of (2) in second sentence, striking out "other" be- acts in conflict herewith are hereby repealed." fore "officers"; (3) substituting the present four .The original § 86 defined the appellate juris- final sentences for the former two final sentences, diction of county courts. which read, "The justices' clerk shall have au- Liability of clerks of courts: 1. On official thority to appoint two dr-puty clerks, for whose bonds. See note 91 Am. St. Rep. 562; 2. To in- acts he shall be resnonsiblc^ on his official bund, dividuals for non-pi'Vlorn-'ince of official duties, the said deputy cltiks to hold office during the ggg ^^^^ 95 ^m_ g^^ j^^p^ 39^ § 87. Sheriff and deputies. The .sherifi! of such city and countj^ shall be ex officio an officer of said court, and it shall be his duty to serve or execute, or cause to be served and executed, each and every process, writ, or order that may be issued by said justices' court; provided, tliat a summons issued from said court may be served and returned as provided in section eight hundred and forty-nine of this code ; and that subpoenas may be issued by the justices' clerk and served as provided in section one thousand nine hun- dred and eighty-seven and one thousand nine hundred and eighty-eight of this code. The said sheriff may appoint, in addition to the other deputies al- lowed by law, three deputies, whose duty it shall be to assist said sheriff in serving and executing the process, writs, and orders of the said justices' court. Said deputies shall receive a salary of one hundred and twenty-five 59 OFFICES — REASSIGNMENT AND TRANSFER OP ACTIONS. §§88-90 dollars per month each, payablo montlil}'', out of tlie city and county treas- ury, and out of the special fee fund, after being first allowed and audited as other demands are by law required to l)e audited and allowed. One of said deputies shall remain in attendance dui-ing the sessions of said court, and at sucli other times as tlie said coui-t or tbe ]>residiug justice thereof may order and direct, for the purpose of attending to such duties as may be imposed on said sheriff or said deputies as herein provided, or required by law. The said sheriff shall be liable on his official bond for the faithful performance of all duties re(iuired of him, or any of his said deputies. Sheriff, generally. See Pol. Code, §§ 4175 ct seq. Tlie original § 87 defined presumptions in favor Legislation g 87. Added by Code Aiudts. of judgments of county courts. 1880, p. 30. § 88. Offices and ofiice hours. The supervisors of such city and county shall provide, in some convenient locality in the city and county, a suitable office, or suite of offices for said presiding justice, justices' clerk, deputy clerk, and deputy sheriff, and ofifices suitable for holding sessions of said court, and separate from one another, for each of said justices of the peace, together with attendants, furniture, fuel, lights, and stationery sufficient for the transaction of business; and if they are not provided, the court may direct the sheriff to provide the same, and the expenses incurred, certified by the justices to be correct, shall be a charge against the city and county treas- ury, and paid out of the general fund thereof. The said justices, justices' clerk, and deputy clerk, shall be in attendance at their respective offices for the dispatch of official business, daily, from the hour of eight o'clock a. m. until five o'clock p. m. Legislation g 88. Added by Code Amdts. The original § 88 provided for terms of county 1880, p. 30. courts in the several counties. § 89. Actions. All actions, suits, and proceedings in such city and county whereof justices of the peace or justices' courts have jurisdiction, except those cases of concurrent jurisdiction that may be commenced in some other court, shall be entitled "In the Justices' Court of the City and County of " (inserting the name of the city and county), and commenced and prosecuted in said justices' court, which shall be always open. The original process shall be returnable, and the parties summoned required to appear before the presiding justice, or 1)efore one of the other justices of the peace, to be designated by the presiding justice, at his office; but all complaints, answers, and other pleadings and papers, required to be filed, shall be filed, and a record of all such actions, suits, and proceedings made and kept in the clerk's office aforesaid; and the presiding justice, and each of the other justices shall have power, jurisdiction, and authority to hear, try, and deter- mine any action, suit, or proceeding so commenced, and which shall have been made returnable before him, or may be assigned or transferred to him, or any motion, application, or issue therein (subject to the constitutional right of trial by jury), and to make any necessary and proper orders therein. Concurrent jurisdiction. See post, § 113. 1880, p. 30. Jurisdiction of justice's couri. See post, §§ 112 The original § 89 declared county courts always et seq. open for certain purposes. Legislation § 89. Added by Code Amdts. § 90. Reassignment and transfer of actions. In case of sickness or dis- ability or absence of a justice of the peace (on the return of a summons or at the time appointed for trial) to whom a cause has been assigned, the pre- § 91 justices' courts. 60 siding justice shall reassign the cause to some other justice, who shall pro- ceed with the trial and disposition of said cause in the same manner as if originally assigned to him ; and if, at any time before the trial of a cause or matter returnable or pending before anj^ 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 ground of the interest, prejudice, or bias of such justice, and such objection be made to appear in the manner prescribed b}^ section eight hundred and thirty-three 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 may, 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 authority to hear, try, and determine the same accordingly. Legislation § 90. Added by Code Amdts. The original § 90 provided for place of holding ISSO, p. 31. county courts, § 91. Payment of fees. 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 allowed by law, shall be issued by the said justices' clerk upon the order of the presiding justice, or upon the order of one of the jus- tices of the peace, acting as presiding justice, as in this article provided ; and the fees for issuance and service of all such process, and all other fees which are allowed by law for any official services of justices, justices' clerk, 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 supervisors may require, and before his salary shall be allowed, accounted for in detail, under oath, and paid into the treasury of such city and county as part of the special fee fund thereof; provided, that such payment in advance shall not be exacted from parties who may prove to the satisfaction of the presiding justice that they have a good cause of action, and that they are not of sufficient pecu- niary 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 al- lowed therefor, and all fees for previous services therein, Avhicli are destined to be paid into the treasury, shall have been paid, except in cases of poor persons, as hereinbefore provided. Fees. See Const., art. vi, § 15. the presiding justice. Helms v. Dunne, 107 Legislation § 91. i. Added by Code Amdts. Cal. 117; 40 Pae. 100. Where the process 18SO, p. 31. recites that it was issue^l upon the order 2. Amendment by Stats. 1901, p. 119; un- of the presiding iustice, it mav be proved constitutional. See note ante, § 5. ,, , .■.' o-,ipr •'„ ;,, 'f„„j. ™'„,ip L. the LIltlL Lilt; UlQcl Vv tto 111 Xclt t lIltlMc UV LUtJ Process on order of presiding justice. presiding justice, though there is a mis- An order of the presiding justice is neces- take in his name. Helms v. Dunne, 107 sary to secure issuance of process; and C'al. 117; 40 Pac. 100. mandamus will not lie to compel the clerk Fees. The fee for entering judgment is to issue process without such order. Kos- two dollars, but the justice is not author- minsky v. Williams, 126 C'al. 26; 58 Pac. ized to receive the same: it must bo paid 310. The signature to the process may be to the clerk. Eeid v. Groezinger, 115 Cal. by the clerk, who should sign as "justice's 551 j 47 Pac. 374; Miller v. Curry, 113 Cal. clerk": the process need not be signed by 644- 45 Pac. 877. 61 CERTIFICATES AXD OTHER PAPERS — EXTENT OF JURISDICTION. § 92. Certificates, transcripts, and other papers. Cases which by the pro- visions of law are rcMiuired to be cei-tilied to tlie superior court, by reason of involving the question of title or possession of real property, or the lefrality of any tax, impost, assessment, toll, or municipal fine, shall be so certified by the presiding justice and justices' clerk; and for that purpose, if such ques- tion shall arise on the trial, while the case is pendino; before one of the other justices, such justice shall certify the same to the presiding justice. All abstracts and transcripts of judgments and proceedings in said court, or in any of the dockets or registers of or deposited in said court, shall be given and certified from any of such dockets or registers, and signed by the pre- siding justice and clerk, and shall have the same force and effect as abstracts and transcripts of justices of the peace in other cases. Appeals from judg- ments rendered in said coui't shall be taken and perfected in the manner 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 ap- peal, or on any bond, or undertaking given in any cause or proceeding in said court, when required to justify, may justify before any one of the justices. Transfer to superior court. See post, § 838. ner v. Superior Court, 161 Cal. 209; 118 Appeals. Seepost, §§974etseq. p^e. 709. After a case in the justice's Legislation § 92. Added by Code Amdts. court of the city and county of San Fran- 18SO, p. 3..>. Cisco has been assigned for trial to a par- Undertaking on appeal. An undertak- ticular justice, the justification of sureties ing on appeal from a justice's court, de on an undertaking on appeal may, after fective merely, and not a nullity, may due notice to the adverse party, be taken be cured by filing in the superior court a before any other justice of the same court, sufficient undertaking, in jmrsuance o± Werner \. Superior Court, 161 Cal. 209; leave first obtained from that court. Wer- 118 Pac. 709. §93. Justices' docket. In a suitable book, strongly bound, the justices' clerk shall keep a permanent record of all actions, proceedings, and judg- ments 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 section nine hun- dred 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 return- able before or assigned or transferred to him for trial or hearing; and upon judgment or other disposition of a cause, such justice shall immediately certify and return the said minutes, together with all pleadings and papers in said cause, to the clerk's office, who shall immediately thei'eupon file the same and make the proper entries under the title of the action in the docket aforesaid. Docket. the justice's docket is primarv evidence ot o' BsiVt^ol^' /olT'&l'^^ ^^ ^^'^' *^^® *'^^*^ therein alleged, where they are ■ ' ■ not rebutted by anvthing else in the rec- Legislation § 93. Added by Code Amdts. ^^d. Eauer v. Justice's Court, 115 Cal. 84; ^^^^'V-3^- 46 Pac. 870. Effect of entry in docket. The entry in § 94. Territorial extent of jurisdiction. The jurisdiction of the justices' court of such city and county extends to the limits of the city and county, and its process may be served in any part thereof. §§ 95-98 justices' courts. 62 Jurisdiction. Post. §§ 112 et setj., 925. 1880. p. 32. Process, where runs. See post, § 106. The original § 94 provided that a probate court Legislation § 94. Added by Code Amdts. ™"st be held in each county. §95. Practice and rules. The jn.stiees' conrt and the justices of the peace of every such city and county shall be governed in their proceedings by the provisions of law 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 officers thereof; but such rules shall not be in force until thirty days after their publication; and no rules shall be made impos- ing any tax or charge on any legal proceeding, or giving any allowance to any justice or officer for services. Provisions applicable. See post, §§ 832-926. Rules Of court, Eules of practice are Rules of courts generally. See post § 129. properlv within the iurisdiction of the ISsTi 32°^ ^ • court. Ex parte Thistleton, 52 Cal. 220; Ori'ginal § 95: "Judges of" [probate court]. People V. Jordan, 65 Cal. 644; 4 Pac. 683. § 96. Attorney. Who shall not act as. It shall not be lawful for any justice of the peace, justices' clerk, or sheriff of any such city and county, or any of their deputies, to appear or advocate, or in any manner act as at- torney, 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 before 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 be- fore said justices' court, or any of said justices, unless he produce a sufficient power of attorney to that effect, duly executed and acknowledged before some officer authorized by law to take acknowledgments of deeds, which power of attorney, or a copj^ 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 proceeding. Judges, disqualifications of. Post, §§ 170-172. The original § 96 provided for the election of _.,. „ ,,,,„,., -.^...^ a probate judge in the city and county of San Legislation § 96. Added bv Code Amdts. 1880, Francisco p. 33. § 97. Salaries. The justices of the peace shall receive for their official services the following salaries and no other or further compensation, pay- able monthly, out of the city and county treasury, after being first allowed and audited, as other similar demands are by laAv required to be allowed and audited ; to each of the justices of the peace four thousand two hundred dollars per annum. Legislation § 97. 1. Added by Code Amdts. dollars per annum; to the other justices of the 1880, p. 33, and then read: "The justices of the peace and the justices' clerk, each, twenty-four peace, and justices' clerk, and his deputy shall re- hundred dollars per annum; to the deputy of the ceive for their official services the following sala- justices' clerk, twelve hundred dollars per annum." ries, and no other or further compensation, pay- 2. Amended by .Stats. 1905, p. 9. able monthly, out of the city and county trensury, 3. Amended by Stats. 1915, p. 1440, substi- and out of the special fee fund thereof, after being tuting "four thousand two hundred dollars" for first allowed and audited as other similar demands "thirty-si.K hundred dollars." are by law required to be allowed and audited: The original § 97 defined the jurisdiction of To the presiding justice, twenty-seven hundred probate courts. § 98. What justices successors of others. The justices of the peace elected in any such city and county at the general election of eighteen hun- dred and seventy-nine, or persons appointed to fill their places, are succes- sors of the justices of the peace of such city and county who held office af the time of such election; and all records, registers, dockets, books, papers. 63 JUSTICES — RETURN OP PROCESS. §§ 99, 100 causes, actions, and proceedings lodged, deposited, or pending befoi-e 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, tiled, or commenced therein. Similar provisions. Legislation S 98. Added by Code Amdts. 1. Supreme court. Ante, § 55. ISSO, p. :5;!. 2. Superior court. Anti', § 79. The oriKinal § 98 defined presumptions in favor What justices auccessors of others. See post, of judgments of probate courts. S 1U7. ARTICLE 11. JUSTICES' COURTS IN TOWNSHIPS. § 99. Justices' courts and justices in town- second and one half and third classes, ships having a population between duties, etc. two hundred and fifty thousand and § 103a. Justices' clerks, additional powers of. four hundred tliousand. § 103b. Justices' clerics in counties of the § 100. Return of process. seventh class, appointed when, and § 101. Appointment of justices' clerk. powers and duties of. § 102. Duties of justices' clerk. § 104. Courts, where held. § 102a. Fees. § 105. What justice may hold court for an- § 102b. Salaries of justices and clerks. other. § 103. Justices' courts and justices. In counties. § 106. Territorial extent of civil jurisdiction. In cities of various classes. Jurisdic- § 107. What justices successors of others. tion. Qualifications. Salaries. Fees. § 108. [Related to municipal criminal court of § 103J. Clerk to justice's court in cities of San Francisco. Repealed. § 109. Same.] § 99. Justices' courts and justices in townships having- a population between two hundred and fifty thousand and four hundred thousand. There shall be in each township having a population of more than two hun- dred and fifty thousand and less than four hundred thousand, one justices' court composed of six justices of the peace, which shall have the powers and jurisdiction prescribed and conferred by laAv upon justices of the peace. Said justices shall choose one of their number to be presiding justice, and in case of his disability or temporary absence he may designate any one of the other justices to act in his stead. Any of said justices may hold court and there may be as many sessions of said court at the same time as there are justices thereof. The supervisors shall provide in a convenient locality a suitable office for the presiding justice, justices' clerk, and rooms suitable for holding sessions of said court, separate from each other, for each of said' justices of the peace. The said justices, justices' clerk, and deputy clerk, shall be in attendance at their respective offices for the dispatch of official business daily from nine o'clock a. m. until five p. m. Nothing in this act shall affect the tenure of office of any justice of the peace noAV holding office. Legislation § 99. 1. Added by Stats. 1911, taking effect said justice of the peace shall or- p. 442; the act (adding §§ 99-lb2b) containing ganize said court under the provision of this act." a saving clause, reading, "Sec. 7. Nothing in this 2. Amended by Stats. 1915, p. 215, (1) in act shall in any way interfere with or terminate first sentence, substituting "six justices of the the term of office of any person now holding the peace" for "four justices of the peace"; (2) add- oiBce of either justice of the peace or clerk of ing the saving clause at the end of the section, the justices' court, but immediately upon this act The original § 99 related to probate courts. § 100. Eeturn of process. Tlio original process in actions or proceedings begun in said justices' court shall be returnable and the parties summoned required to appear before said court. Legislation § 100. 1. Added by Stats. 1911, made returnable before him or may be assigned p. 442 (see ante, Legislation § 99), and then or transferred to him." read: "The original process in all actions or pro- 2. Amended by Stats. 1913, p. 1326. ceedings begun in said justices' court shall be The original § 100 (a part of article i) related returnable, and the parties summoned required to places of holding probate courts, and was to appear before the presiding justice or before enacted March 11, 1872. and repealed by Code one of the. other justices of the peace to be des- Amdts. 1880, p. 21, in amending Part I. ignated by'the presiding justice, and each of the ProceSS, how returnable. Under this sec- justices shall have power, jurisdiction and author- .. addp.l in IQll a summons com- ity to hear, try and determine any action or pro- ^^^D as aaueu in iWli a summons com eeeding so commenced and which may have been mandmg the detendant to appear and §§ 101-102a justices' courts. 64 answer before the "justices' court" was justices designated and named therein. insiifSeieut to give jurisdiction: it should Nellis v. Justices' Court, 2U Cal. App. 394; have required him to ajspear before either 129 Pac. 472. the presiding justice or one of the other § 101. Appointment of justices' clerk. Said justices shall appoint a jus- tices' clerk and assistant justices' clerk, who shall hold office at the pleasure of said justices and shall give such bond for the faithful performance of the duties of his office as said justices may require. Each justice shall also ap- point one deputy clerk who shall hold office at the pleasure of the justice appointing him and perform such duties as shall be required by said justice or justices' clerk. Said justices' clerk, said assistant justices' clerk and said deputy clerks shall be authorized to administer oaths and take and certify affidavits. And they shall each be authorized to issue and sign writs, summons and all other processes in any actions or proceedings in said jus- tices' courts in the name of the presiding justice or the acting presiding jus- tice substantially as follows : , Presiding Justice. By , Clerk. Legislation § 101. 1. Added by Stats. 1911, tence, reading, "Said justices' clerk, and said p. 442. See ante. Legislation § 99. deputy clerks shall be authorized to administer 2. Amended by Stats. 1913, p. 1326, (1) in oaths and take and certify aiifidavits and to issue first sentence, adding "and assistant justices' writs, summons and all "other processes in any 'clerk"; (2) recasting the section after the second action or proceeding in said justices' court." sentence, the original section, after that sen- § 102. Duties of justices' clerk. All papers to be filed with the clerk, all legal process of every kind in actions or proceedings in said justices' court, shall be issued by one of said justices or by said justices' clerk, assistant justices' clerk or deputy justices' clerk. Any one of said justices or the said justices' clerk, assistant justices' clerk or said deputy clerks shall issue. sign and certify in the name of the presiding justice or acting presiding justice to any and all papers, transcripts or records which are required to be issued, signed or certified by said justices of the peace. All complaints, answers and other pleadings and papers required to be filed in said justices' court shall be filed with said justices' clerk who shall keep a permanent record of all such actions and proceedings in said justices' docket now pro- vided by law to be kept. Legislation § 102. 1. Enacted by Stats. 1911, vided by law to be kept." p. 443 (see ante. Legislation § 99), the section 2. Amended by Stats. 1913, p. 1327. then reading, "§ 102. All legal processes oi every kind in actions or proceedings in said jus- Issuance 01 prOCeSS. Under this section tices' court shall be issued by the said justices' as added in 1911, the cleric cannot issue the clerk upon the order of the presiding justice. summons unless the DresirUncr ■iimtir.p nf- The said justices' clerk shall issue, sign and summons, unless tne presuung ju&tice, at- certify to any and all papers, transcripts or rec- ter the commencement ot the action, makes ords which are required to be issued, signed or an order, in writing, directing him to do certified by the said justice of the peace All ^ general order to the clerk to sign all complaints, answers and other pleadings and •'> . . " j^ ^ "■ papers required to be filed in the justices' couit, necessary legal process IS insufficient, shall be filed with the said justices' clerk, who Nellis V. Justices' Court, 20 Cal. App. 391: shall keep a permanent record of all such actions 2''9 Pac 472 and proceedings in the justices' docket, now pro- § 102a. Fees. The fees for issuance of all processes and all other fees, which are allowed by law for any official service of the justices of the peace shall be exacted and paid in advance into the hands of said justices' clerk and be by him accounted for in detail under oath at such times as may be required by the board of supervisors, and paid into the treasury of the county, and all fees, fines and penalties received or collected in said justices' court shall be and become the property of the county. Legislation S 102a. Added by Stats. 1911, p. 443. See ante, Legislation § 99. 65 SALARIES AND FEES OF JUSTICES AND CLERKS. §§ 102b, 103 § 102b. Salaries of justices and clerks. Said justices of the peace shall receive a salary of three thousand dollars per year, and said justices' clerk shall receive a salary of eighteen hundred dollars per year, and said deputy clerks shall each receive a salary of one thousand two hundred dollars per year, each payable in like manner and out of the same funds and at like times as county officers are paid, and such salaries provided to be paid to said justices of the peace shall be in lieu of all fees due and to become due such justices of the peace for the performance of any official act. Legislation § 102b. Added by Stats. 1911, p. 443. See ante, Legislation § 99. §103. Justices' courts and justices. In counties. In cities of various classes. Jurisdiction. Qualifications. Salaries. Fees. There shall be at least one justices' court in each of the townships of the state, for which one justice of the peace must be elected by the qualified electors of the town- ships, at the general state election next preceding the expiration of the term of office of his predecessor. In any county where in the opinion of the board of supervisors the public convenience requires it, the said board may, by order, provide that two justices' courts may be established in any township, designating the same in such order; and in such case, one justice of the peace must be elected in the manner herein provided for each of said courts. In every city or town of the first and one half class there must be five justices of the peace, and in every city or town of the second class there must be two justices of the peace, and in every city or town of the second and one half class there must be one justice of the peace, and in every city or town of the third and fourth classes there must be one justice of the peace, to be elected in like manner by the electors of such cities or towns respectively ; and such justices of the peace of cities or towns shall have the same jurisdiction, civil and criminal, as justices of the peace of townships and township justices' courts. Said justices of the peace of cities and justices' courts of cities shall also have jurisdiction of all proceedings for the violation of any ordi- nance of any city in which courts are established, both civil and criminal, and of all actions for the collection of any license required by any ordinance of any such city or town, and generally exercise all powers, duties and juris- diction civil and criminal, of police judges, judges of police courts, recorder's court or mayor's court, within such city. No person is eligible to the office of justice of the peace in any city or town of the first, first and one half, sec- ond, second and one half or third class, who has not been admitted to prac- tice law in a court of record; and no justice of the peace is permitted to practice law before another justice of the peace in the city, town or county in which he resides, or to have a partner engaged in the practice of law in an}'^ justices' court in such city, town or county. Every city justice of the peace in any city or town of the first and one half class shall receive a salary of three thousand dollars per annum, and every city justice of the peace in any cit}'^ or town of the second class shall receive a salary of three thousand six hundred dollars per annum, and every city justice of the peace in any city or town of the second and one half class shall receive a salary of three thousand dollars per annum, and every city justice of the peace in any city or town of the third class shall receive a salary of two thousand dollars per annum, and every city justice of the peace in any city or town of the fourth 1 Fair. — 5 103 justices' coukts. 66 class shall receive a salary of one thousand five hundred dollars per annum; and each justice of the peace shall be provided by the city or town authori- ties with a suitable office in which to hold his court. Where the compensa- tion of the justice of the peace of any city or town is by salary it shall be paid by warrants drawn each month upon the salary fund, or if there be no salary fund, then upon the general fund of such city or town ; such warrants to be audited and paid as salaries of any other city officials. All fees which are chargeable by law for services rendered by such city justice of the peace in cities or towns aforesaid shall be by them respectively collected, and on the first Monday of each month every such city or town justice shall make a report, under oath, to the city or toAvn treasurer, of the amount of fees so by him collected, and pay the amount so collected into the city or town treas- ury, to the credit of the general fund thereof. Said salaries shall be the sole compensation of the said city justice. Act of stats. 1883, p. 63. This section super- seded the act of Stats. 1883, p. 63, fixing juris- diction and providing compensation for justices of the peace. Justices of the peace. 1. Eligibility. See post, § 159. 2. Disabilities. See post, §§ 170 et seq. 3. Fees. See Const., art. vi, § 15. Legislation § 103. 1. Added by Code Amdts. 1880, p. 84, and then read: "There shall be at least one justices' court in each of the townships of the state, for which one justice of the peace shall be elected by the qualified electors of the township, at the general state election next pre- ceding the expiration of the term of office of his predecessor; provided, that in any county where, in the opinion of the board of supervisors the public convenience requires it, the said board may, by order, provide that two justices' courts may be established in any township, designating the same in such order, and in such case one justice of the peace shall be elected in the man- ner herein provided for each of such courts. In every city having ten thousand and not more than twenty thousand inhabitants there shall be one justice of the peace, and in every city having twenty thousand and not more than one hundred thousand inhabitants two justices of the peace, to be elected in like manner by the electors of such cities resnectively. No person shall be eligible to the office of justice of the peace in any city liaving over ten thousand inhabitants who has not been admitted to practice law in a court of record ; and no justice of the peace shall be per- mitted to practice law before any other justice of the peace in the city or county in which he resides, or to have a partner engaged in the practice of law in any justices' court in such city or county. Every justice of the peace in any city having over ten thousand 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 chargealjle for services rendered by such justices of the peace in the cities aforesaid, shall be by them respectively collected, and on the first Jfonday in each month every such city justice of the peace shall make report, under oath, to the city treas- urer, 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." , ^ , 2. Amended by Stats. 1891, p. 456, (1) by changing the second sentence to read, "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 thousand and not more than one hun- dred thousand inhabitants, two justices of the peace, to be elected in like manner by the electors of such cities, respectively; and such justices of the peace of cities, and justice's courts of cities, shall have the same iurisdiction, civil and criminal, as justices of the peace of townships and township justice's courts"; and (2) by changing "ten thousand inhabitants," in both places where subsequently printed, to "fifteen thousand inhabitants." 3. Amended by Stats. 1899, p. 88, by changing the section, after the first sentence, to read, "In every city or town of the third and fourth class there shall be one justice of the peace, and in every city or town of the second class there shall be two justices of the peace, to be elected in like manner by the electors of such cities, or towns, respectively; and such justices of the peace of cities or towns, and justices' courts of cities or towns, shall have the same jurisdiction, civil and criminal, as justices of the peace of townships, and township justices' courts. Said justices of the peace of cities, and justices' courts of cities, shall also have jurisdiction of all proceedings for the violation of any ordinance of any city in which courts are established, both civil and criminal, and of all actions for the col- lection of any license required by any ordinance of any such city or town. No person shall be eligible to the office of justice of the peace in any city or town of the first, second, or third class who shall not have been admitted to prac- tice law in a court of record; and no justice of the peace shall be permitted to practice law be- fore another justice of the peace in the city, or town, and county in which he resides, or to have a partner engaged in the practice of law in any justice's court in such city, or town, and county. Every city justice of the peace in any city or town of the fourth class shall receive a salary of fifteen hundred dollars per annum, and every city justice of the peace in any city or town of the second or third class shall receive a salary of two thousand dollars per annum, and each justice of the peace shall be provided by the city or town authorities with a suitable office in which to hold his court. All fees which are chargeable by law for services rendered by such city justices of the peace in the cities or towns aforesaid shall be by them, respectively, col- lected; and on the first Monday of each month every such city or town justice of the peace shall make a report, under oath, to the city or town treasurer, of the amount of fees so by him col- lected, and pay the amount so collected into the city or town treasury, to the credit of the gen- eral fund thereof. Said salaries shall be the sole compensation of said city justices." 4. Amended by Stats. 1901, p. 100; (1) in the first sentence, (a) "shall" is changed to "must" twice, where printed, (b) the words "provided, that" are stricken out, and a new- sentence begun with the words "In any county," (c) the words "provided that two" are changed to "provide that two"; (2) in the second sen- tence, (a) the words "the third and fourth class there shall be one justice" are chan','ed to "the third and the fourth class there must be one justice"; (b) the words "the second class there 67 SALARIES AND FEES OF JUSTICES. §103 shall bo two justices" are chanRed to "the first and one half and the si'cond class there must l>o two justices"; (3) in snitcncc bci;inninK "Said justices," after tlie words "such city or town," there is added the clause, "and generally exercise all powers, duties and jurisdiction, civil and criminal, of police judges, judges of the police court, recorder's court, or mayor's court within euch city" ; (4) entire sentence beginning "Xo person shall" is chanjred to read, "Xo person is eligible to the oflice of justice of the peace in any city or town of the first, first and one half, second or third class who has not been admitted to practice law in a court of record; and no justice of the peace is permitted to practice law before another justice of the peace in the city, town or county in which he rcKidts. or to have a partner engaged in the practice of law in any justice's court in such city, town or county" ; (5) in sentence be,^inning "Every city justice," the last clause, beginning "and each justice," is changed to read, preceded by a semicolon, "and every city justice of the peace in any city or town of the second or third class shall receive a salary of two thousand dollars per annum; and every city justice of the peace in any city or town of the first and one half class shall receive a salary of twenty-four hundred dollars per annum; and each city justice of the peace shall be provided by the city or town aiithorities ■with a suitable office in which to hold his court"; (6) following the words "his court," a new sen- tence is added, "Where the compensation of the justice of the peace of any city or town is by salary, it shall be paid by warrants drawn each month upon the salary fund, or, if there be no salary fund, then upon the general fund, of such city or town ; such warrants to be audited and paid as salaries of other city oScials." 5. Amended again by s'lnts. 1901, p. 119 (code commission amendment) ; unconstitutional. See note ante, § 5. 6. Amended by Stats. 1003, p. 210, by (1) changing, in the last sentence, the words "Said salaries" to "Said salary," and (2) adding the proviso, at the end of the section, "provided, that the provisions of this section as to the establishment of justices' courts and city justices of the peace in cities or towns, shall not apply to cities or towns in which recorders' courts or city or town recorders are now or may hereafter be established, and city justices' courts now ex- isting in such cities or towns are hereby abol- ished." 7. Amended by Stats. 1905, pp. 49, 50, (1) in the sentence beginning "In every city or town," the words "first and one half and the second class" were changed to "first and one half class there must be three justices of the peace, and [in] every city or town of the second class"; (2) the sentence fixing the salary was am- nded to read, "Every cit}' justice of the peace in any city or town of the fourth class shall receive a salary of fifteen hundred dollars per annum, and every city justice of the peace in any city or town of the third class shall receive a salary of two thousand dollars per annum; and every city justice of the peace in any city or town of the first and one half class and the second class[,| shall receive a salary of twenty-four hundred dollars per annum; and each city justice of the peace shall be provided by the city or town authorities with a suitable office in which to hold his court"; and (.3) the proviso at the end of the section was stricken out. There were two amendments of § 103 enacted on the same day (March 3, 1905); the first (Stats. 1905, p. 49) was to go into effect immediately, and the second (Stats. 1905, p. 50) on the first Monday after the first day of .January, 1907; they were iden- tical, except for the changes indicated supra by brackets, the second amendment, on page 50, being printed minus these changes, and contain- ing, also, several unimportant typographical varia- tions. 8. Amended by Stats. 1907, p. 190, by changing, in the sentence beginning "In every city or town," the words "there must be three justices" to "there must be four justices." 9. Amended by Stats. 1909, p. 47, (1) the first two sentences reading the same as the present amendment (1911); (2) the third sentence then reailing, "In every city or town of the third and the fourth class, there must be one ju.stice of the peace, and in every city or town of the first and one half class there must be four justices of the peace, and in evury city or town of the second class there must be two justices of the peace, to be elected in like manner by the electors of such cities or towns res))c:ctively ; and suili justic»8 of the peace of cities or towns shall have the same jurisdiction, civil and criminal, as justices of the peace of townships, and township justices' courts"; (3) the fourth sentence had (a) a comma after "cities," where it is first printed in the sentence, and (b) the definite article "the" before "polics court," in the last clause; (4) the fifth sentence, beginning "Xo person," did not have the words "second and one half" in the first clause; (5) the sixth sen- tence, down to the last clause, reading, "Every city justice of the peace in any city or town of the fourth class shall receive a salary of fifteen hundred dollars per annum, and every city jus- tice of the peace in any city or town of the third class shall receive a salary of two thousand dollars per anmiiu, and every city justice of the peace in any city or town of the first and one half class shall receive a salary of three thou- sand dollars per annum and every city justice of the peace in any city or town of the second class shall receive a salary of thirty-six hundred dollars per annum," the last clause reading the same as the present amendment; (6) the seventh sentence, beginning "Where the compensation," did not have the word "any" before "other city ofiicials," at the end thereof; (7) the eighth sentence had the words "of the peace," aiter "town justice"; (8) the last sentence then read, "Said salaries shall be the sole compensation of said city justices." To'R'nship justices. This section provides for the selection of township justices (Peo- ple V. Sands, 102 Cal. 12; 36 Pac. 404; People V. Cobb, 133 Cal. 74; 65 Pac. 325), and also for their tenure of office, which la four years. Bailey v. Board of Supervi- sors, G6 Cal. 10; 56 Am. Rep. 73; 4 Pac. 768; Milner v. Eeibenstein, 85 Cal. 593; 24 Pac. 935; People v. Cobb, 133 Cal. 74; 65 Pac. 325. A justice of the peace, holding office by virtue of general laws, is a '"part of the constitutional judicial system of the state." Graham v. Mayor and Board of Trustees, 151 Cal. 465; 91 Pac. 147; Pcter- baugh V. Wadham, 162 Cal. 611; 123 Pac. 804. Number of justices of the peace. Where a judicial township consists entirely of a city having a population of more than five thousand, and is provi.led, by charter, with a city justice of the peace appointed by the city council, such township is, under § 4101 of the Political Code, entitled to have but one justice of the peace elected at a general election. Odell v. Kihn, 19 Cal. App. 713; 127 Pac. 802. If a town- ship is entitled to two justices of the peace, and two are in fact voted for at an election, two should be declared elected, though the proclamation called for the election of but one. If only one justice is 4n fact voted for at an election, when two should be elected, there is a failure to choose a second justice. Almon v. McEvoy, 19 Cal. App. 141; 124 Pac. 874. De facto officer. The incumbent is en- titled to discharge the duties and receive § 1031/2 justices' courts. 68 the compensation until his successor quali- fies, and also, on the absolute failure of his successor to qualify, to hold the office for the entire term for which his successor was elected. French v. Santa Clara County, 69 Cal. 519; 11 Pac. 30. City justices. This section also provides for the election of city justices, and for their tenure of office, which is fixed at two years. Ex parte Henshaw, 73 Cal. 486; la Pac. 110; Alilner v. Reibenstein, 85 Cal. 593; 2i Pac. 935; People v. Sands, 102 Cal. 12; 36 Pac. 404. All city justices' courts in the state, whether in cities with free- holders' charters, or in those organized under the general law, are dependent upon ihis section, and therefore upon the classi- fication act, for a valid existence (In re Johnson, 6 Cal. App. 734; 93 Pac. 199); and where they exist under a special char- ter, granted prior to the adoption of the present constitution, they are not dis- turbed or superseded. Ex parte Arm- strong, 84 Cal. 655; 24 Pac. 598. In its broadest sense, the word "elected" means, merely, selected; hence, if a justice of the peace has been selected by the votes of several members of a city council, it is tantamount to an election. Odell v. Eihn, 19 Cal. App. 713; 127 Pac. 802. Salary of justice of the peace. The inhi- bition of the constitution against increas- ing an officer's salary has reference only to the compensation as fixed by law when his term of office began; the legislature has power, pending the term, to lower the compensation, and afterwards raise it to a figure not in excess of that fixed when the term began. Puterbaugh v. Wadham, 162 Cal. 611; 123 Pac. 804. The prohibition of § 9 of article xi of the constitution, against increasing an officer's salary, is directed to the legislature: it has no appli- cation to an automatic increase in salary, due to the passing of a city, not by legis- lative act, but by increased population, from one class to another. Puterbaugh v. Wadham. 162 Cal. 611; 123 Pac. 804. A justice of the peace of a city of the second and one half class had no right to salary § 103|. Clerk to justices' court in cities of second and one half and third classes, duties, etc. Every city justices' court in any city or town of the second and one half class and the third class shall have a clerk, who shall be appointed by the justice of the peace of said court, subject to the approval of the board of supervisors of the count}'-, and shall hold office during the pleasure of said justice. Said clerk shall give a bond in the sum of five thousand dollars, with at least two sureties to be approved by the mayor, conditioned for the faithful discharge of the duties of his office. He shall keep a record of the proceedings of said court and issue all process ordered by the justices of said court, and receive and pay into the city treasury all fines, forfeitures and fees paid into said court. Pie shall render each month to the city council an exact account under oath of all fines, forfeitures and fees paid and collected. He shall prepare bonds, justify bail, when the until the amendment of this section in 1911. Puterbaugh v. Wadham, 162 Cal. 6H; 123 Pac. 804. The salary of city jus- tices is paid by the city, and payments are made monthly. Jenks v. Council of City of Oakland, 58 Cal. 576; Los Angeles County V. Los Angeles, 65 Cal. 476; 4 Pac. 453; Milner v. Eeibenstein, 85 Cal. 593; 24 Pac. 935. City justices under charters. As to cities acting under a freeholders' charter, a city justice of the peace is the same as a township justice, simply a county or town- ship officer performing no municipal func- tions whatever. Graham v. Mayor and Board of Trustees, 151 Cal. 465; 91 Pac. 147. Justices' courts in municipalities are part of the constitutional judiciary. Peo- ple V. Eansom, 58 Cal. 558; People v. Sands, 102 Cal. 12; 36 Pac. 404; Kahn v. Sutro, 114 Cal. 316; 33 L. R. A. 620; 46 Pac. 87; In re Mitchell, 120 Cal. 384; 52 Pac. 799. A police court established by a city under a freeholders' charter is purely a municipal affair, and exempt from legis- lative control. Graham v. Mavor and Board of Trustees, 151 Cal. 465;" 91 Pac. 147. The prosecution of offenses against a state law or a county ordinance is not a municipal dut}'; and the legislature cannot impose the cost of performing this func- tion upon a city. Fleming v. Hance, 153 Cal. 16'2; 94 Pac. 620. The requirement to furnish city justice of the peace with a suitable office in which to hold his court, is not applicable to a city having a freehold- ers' charter, since the constitutional amendments of 1896. Graham v. Mayor and Board of Trustees, 151 Cal. 465; 91 Pac. 147. Commitment on imperfect complaint. When a charge has been examined by a magistrate, and the evidence warrants an order holding the defendant to answer, im- perfections in the complaint are cured, and the commitment is legal. People v. Warner, 147 Cal. 546; 82 Pac. 196; Ex parte Stevens, 16 Cal. App. 424; 117 Pac. 1127. 68a justices' clerks — in counties of the seventh class. §§ 103a, 103b amount has been fixed by the court or justice, and may administer and cer- tify oaths and shall remain in the courtrooms of said court during court hours and during such reasonable times thereafter as may be necessary for the proper performance of his duty. He shall have custody of all records and papers of said justice court. Every clerk of the justices' court in any city or town of the second and one half class shall receive an annual salary of one thousand six hundred dollars, and every clerk of the justices' court in any city or town of the third class shall receive an annual salary of one thousand two hundred dollars; said salaries shall respectively be payable in equal monthly installments out of the treasury of said cities and said salaries shall be the full compensation for all services rendered by the clerks of said courts. Legislation § 1031/2- 1. Added by St. Criininiil juiisdiction. [ Kepi'iili'd. ) § lit). [ .\iiiriieyond the jurisdiction, but the prayer is for juilgment within the jurisdiction, there is a waiver of the ex- cess, ami the court has power to try the cause. Sanborn v. Superior Court, 60 Cal. 425. The i)laiMtiff has the right to waive any sum, to bring the cause within the ju- risdiction of the court (Van Etteu v. .lil- son, 6 Cal. 19; Grass Valley Quartz Mining Co. V. Stackhouse, 6 Cal. 413; Wrattcn v. Wilson, 22 Cal. 465) ; but, the test of juris- diction being the amount sued for, the waiver must be made before the action is commenced; jurisdiction cannot be con- ferred by -an amendment remitting the sum in excess of the jurisdictional amount. Hoban v. Ryan, 130 'Cal. 96; 62 Pac. 296. Where attorneys' fees, stipulated in a note, are demanded in addition to the principal sum due, increasing the amount beyond three hundred dollars, the justice's court is ousted of jurisdiction (Reed v. Bernal, 40 Cal. 62S; De Jarnatt v. Marquez, 127 Cal. 558; 78 Am. St. Rep. 90; 60 Pac. 45); and the justice's court has no jurisdiction, where, by trebling the damages in un- lawful detainer, the sum demanded exceeds the jurisdictional amount. Hoban v. Ryan, 130 Cal. 96; 62 Pac. 296. A counterclaim, to be available, must be within the juris- dictional amount. Malson v. Vaughn, 23 Cal. 61; Maxfield v. Johnson, 30 Cal. 545. Where two actions in a justice's court are, by stipulation, consolidated for the pur- pose of trial, a verdict for a specified amount, less than three hundred dollars in each case, is not uncertain nor in excess of jurisdiction, though the verdict specifies the aggregate amount found, which ex- ceeds three hundred dollars. La Due v. Forbes, 19 Cal. App. 124; 124 Pac. 867. Injury to real property. A justice's court has no jurisdiction to receive evidence in or to try an issue involving title to or possession of real ptroperty; where such evidence is offered, it is the duty of the jus- tice to suspend further proceedings, and to certify the cause to the superior court. King V. Kutner-Goldstein Co., 135 Cal. 65; 67 Pac. 10. This section makes no attempt to confer jurisdiction upon justices' courts in actions involving the right to posses sion of real property. O'Meara v. Hables, 163 Cal. 240; 124 ' Pac. 1003. It is not enough that possession is in fact in con- troversy, or incidentally in question, or that the fact of possession is in issue, to oust the justice of jurisdiction, within the meaning of the constitution: the right to the possession must be involved. Pollock v. Cummings, 38 Cal. 683. The justice is not ousted of jurisdiction, where posses- sion only is involved (Livingston v. Mor- gan, 53 Cal. 23); nor where title to land is §112 JUSTICES COURTS. 74 not flirectlv callefl in question (Sehroeder V. Wittram, 66 Cal. 636; 6 Pae. 737), although the question need not necessarily be raised by the pleadings (Copertini v. Oppermann,'^76 Cal. 181; 18 Pae. 256; Hart V. Carnall-Hopkins Co., 103 Cal. 132; 37 Pae. 196); but see contra, Sehroeder v. Wittram, 66 Cal. 636; 6 Pae. 737; Living- ston V. Morgan, 53 Cal. 23; Ghiradelli v. Greene, 56 Cal. 629; Williams v. Meeart- ney, 69 Cal. 556; 11 Pae. 186. The true rule seems to be this: If the issue of title or right to the possession is so involved that it must be deeided in order to determine the case, the superior court has original jurisdiction, whether the involution may be said to be merely incidental or not. Hart V. Carnall-Hopkins Co., 103 Cal. 132; 37 Pae. 196; Holman v. Taylor, 31 Cal. 338; Copertini v. Oppermann, 76 Cal. 181; 18 Pae. 256; Eaudolph v. Kraemer, 106 Cal. 199; 39 Pae. 533; Baker v. Southern Cali- fornia Ry. Co., 110 Cal. 455; 42 Pae. 975. An action to recover half the value of a partition-fence involves the title of the re- spective parties to their lands, and the justice's court has no jurisdiction (Holman V. Taylor, 31 Cal. 338); but the title or right to the possession is not put in issue in an action to recover rent due on a vprit- ten lease, where the action denies the plaintiff's title or right to possession. Ghir- adelli V. Greene, 56 Cal. 629. The jus- tice's court has jurisdiction of an action to recover a deposit on the purchase of land, where the amount demanded does not ex- ceed the jurisdictional amount (Sehroeder V. Wittram, 66 Cal. 636; 6 Pae. 737); but an action for part payment of the purchase-money, because of a defect of title, involves the title to real property, and is not within the jurisdiction of the iustiee's court. Copertini v. Oppermann, 76 Cal. 181; 18 Pae. 256. Transfer of cases to superior court. See note post, § 838. Conversion. In an action for the con- version of grain, the question of injury does not involve the title to or the right to the possession of the ground on which the grain was grown (Ethridge v. Jackson, 2 Sawy. C. C. 598; 8 Fed. Cas. 801; Fed. Cas. No. 4541); and the justice's court has jurisdiction of an action to recover dam- ages for taking and removing a fence. Livingston v. Morgan, 53 Cal. 23. Actions to recover personal property. In an action in a justice's court for the recov- ery of specific personal property, the stand- ard of jurisdiction is "the value of the property"; and it seems that the justice's jurisdiction for the incidental damages for detention is unlimited; at all events, the demand for damages cannot oust the jus tiee of jurisdiction, if the value of the property is less than three hundred dollars. Astell V. Phillippi, 55 Cal. 265; and see post, §§509-52L Action on bonds. A justice's court has jurisdiction of an action to enforce a bond given to secure the payment of the costs of an attachment suit, brought in the supe- rior court and appealed to the supreme court, even though the appeal is pend- ing and undetermined. Karry v. Superior Court, 162 Cal. 281; 122 Pae. 475; 128 Pae. 760. Fines, penalty, or forfeiture. The jus- tice's court has jurisdiction of actions to recover a fine, penaltj^ or forfeiture, where the amount sued for is within its jurisdic- tion, unless a question as to the legality of the tax, impost, toll, assessment, or munici- pal fine is raised. Williams v. Mecartney, 69 Cal. 556; 11 Pae. 186; and see Randolph V. Kraemer, 106 Cal. 199; 39 Pae. 533. Confession of judgment. A verified state- ment by the defendant, consenting to a judgment, specifying the amount, author- izes a judgment in accordance therewith (Pond V. Davenport, 44 Cal. 481); and such a judgment, rendered upon an insuffi- cient statement, is not a nullity, and can- not he attacked collaterally. Lee v. Figg, 37 Cal. 328; 99 Am. Dee. 271. An applica- tion to set aside confession of judgment must show that the claim was not just, and that the judgment ought not to have been confessed. Arrington v. Sherry, 5 Cal. 513; Lee v. Figg, 37 Cal. 328; 99 Am. Dee. 271. Where the insolvency laws prohibit the confession of judgment by a bankrupt, the assignee in insolvency can have the judgment declared void, upon proper pro- ceedings for that purpose. Pehrson v. Hewitt, 79 Cal. 594; 21 Pae. 950. It is not necessary for a defendant to be an execu- tion creditor, in order to maintain an action to set aside a confession of judg- ment to defraud creditors; it is suQicient if he have an attachment (Conroy v. Woods, 13 Cal. 626; 73 Am. Dee. 605), as creditors who have acquired liens upon a debtor's property, before sale, under con- fessed judgments, may attack the same for fraud (Lee v. Figg, 37 Cal. 328; 99 Am. Dee. 271); but the complaint must set forth the specific facts constituting the fraud (Meeker v. Harris, 19 Cal. 278; 79 Am. Dec. 21.5; King v. Davis, 34 Cal. 100; Lawrence v. Gavetty, 78 Cal. 126; 12 Am. St. Rep. 29; 20 Pae. 382; 17 Morrison's Min. Rep. 169; People v. McKenna, 81 Cal. 158; 22 Pae. 488; Spring Valley Water Works V. San Francisco, 82 Cal.' 286; 16 Am. St. Rep. 116; 6 L. R. A. 756; 22 Pae. 910, 1046), as a general allegation that it is fraudulent, and was intended to hinder and delav creditors, is not sufficient. Pehr- son V. Hewitt, 79 Cal. 594; 21 Pae. 950; Albertoli v. Branham, 80 Cal. 631; 13 Am. St. Rep. 200; 22 Pae. 404; Sukeforth v. Lord, 87 Cal. 399; 25 Pae. 497; Cosgrove v. Fisk, 90 Cal. 75; 27 Pae. 56. Such aver- ments are merely the conclusions of the pleader. Oakland v. Carpeutier, 21 Cal. 75 CONCl'RKKNT JURISDICTION. i- 113 642; Castle v. Bader, 23 Cal. 75; Orovillo etc. R. R. Co. V. Supervisora of Plumas Countv, 37 Cal. 354; Sacramento Sav. Bank V. Hyiies, 5U Cal. 195; Pavne v. Klliott, 54 Cal. 339; 35 Am. Rep. " SO; Pohrson v. Hewitt, 79 Cal. 594; 21 Pac. 950; Alber- toli V. Branham, SO Cal. ()31; 13 Am. St. Rep. 200; 22 Pae. 404; Sukeforth v. L.)r.l, 87 Cal. 399; 25 Pac. 497; Cosgrove v. Fisk, 90 Cal. 75; 27 Pae. 56; Heller v. Dyerville Mfg. Co., 116 Cal. 127; 47 Pat-. 1016. Appeals to superior court. See notes post, §§ 974-980. CODE COMMISSIONERS' NOTE. The preced- ing action is biised iipuii the iict of 18113 (Stilts. iHfi;^, p. 340). hi ihe oriuiiiiil section the ju- risdiction e.xtt'uded in actioi.s upon n contract or to recover danipges to an "amount not exceeding three hundred dollars." The eonstitutioi (art. vi, S9) declares tliat the jurisdiction of tliese courts shall not trer.ch upon the jurisdiction of courts of record, and § 6 of the same article con- ferred jurisdiction in this class of cases when the sum in controversy amounts to three liundred dol- lars. To ohviate this constitutional objection, we have stricken out th.e words "does not exceed three hundred dollars," wherever they occurred in the original section, and inserted instead thereof the words "does not amount to three hundred dollars." Subdivision 5 of the origi- nal section gave these c;)urts jurisdiction of actions of foreclosure when the debt secured did not exceed three hundred dollars, trenehi:!-- uuon the equity jurisdiction cast by the constitution upon the district courts; theref-^re we have omitted this subdivision, and for kindred rea- sons we have omitted the provisions of the eighth subdivision of the original section, conferring ju- risdiction upon justices' courts to determine the risht to a mining claim, when the value of the claim did not exceed three hundred dolL^rs. 1. Jurisdiction to appear from records. The record of the proceedings of a justice's court must afiirmativelv show jurisdiction. Jollev v. Foltz, 34 Cal. 321; King v. Randlett, 33 Cal. 318; Rowley v. Howard. 23 Cal. 401; Lowe v. Alex- ander, 15 Cal. 296. 2. Legality of tax. AVhere the legality of a fax is put in issue, the justice is ousted of juris- diction. People V. Jlier, 24 Cal. 61. 3. Final judgments of justice cannot te re- viewed ty him. A justice has no power to va- cate a judgment of dismissal and reinstate the case. O'Connor v. Blake," 29 Cal. 312. A justice has no power to vacate or set aside a judgment made by him. except upon a motion for a new trial. And when this is done the proper remedy is by certiorari from district or county court, and not by appeal. No appeal lies in such a case. The judgment of the district court annulling such order should not, however, affirm the original judg- ment. V.'intcr v. Fitzpatrick, 35 Cal. 269. 4. Aincndment of complaint, so as to show ju- risdiction. A justice has the right to allow a complaint to be amended in all respects, so that the case may be determined on its substantial merits; and this whether the defect be in the statement', jurisdiction, or other facts. Li'ihart v. Buiff, n Cal. 280: Wratten v. Wilson, 22 Cal. 465. '\Vhen a complaint in a justice's court avers a good cause of action, and in addition thereto avers and asks relief for matters not within the jurisdiction of the court, the oction iiho\ild not on that acccuinl be dismissed, but the conn should direct thi> complaint to be amended, or should disregard the objeclionuble matter. Howard v. A'alentine, 20 Cal. 282: Van Ktlen v. Jilson, Ciil. 19: (irasB Valley Quartz Min. Co. v. Stack- hiuse, 6 Cal. 413; Wratten v. Wilson, 22 Cal. 4 65. .'). Granting appeals, stay of executions, etc. ,Tuslic(s can exercise jurisdiction to j.'.ra"t ap- I)eals, and thereupon stay execution, etc. Coulter v. .*Si;irk. 7 Cal. 244. 6. Deserting seamen. Under the acts of Con- press (1790), justices of the peace have jurisdic- tion to try and commit deserting seamen, and no other c.Mut has this power. Kx parte (,'randall, 2 Cal. ] 44. 7. Money demands. Amount In controversy. A judgment l)y confession for a greater amount than (notwithstanding the coni|)l;iint was within) the jurisdictional amount allowed by the constitu- tion, was held void. Feillett v. Fngler, 8 Cal. 76. But this case is commented on, and it was held th:it the "amount in controversy is what deter- mines the jurisdiction." 'I'hat this was the amount sued for, exclusive of costs. The judgment may exceed the amount in controversy. Bradley v. Kent, 22 Cal. 169; but see Reed v. Bernal, 40 Cal. 629; see note 6 to § 44, ante. Formirly, un- der the constitution, the jurisdiction of the jus- tice's court was limited, as to money dema!ids, to an "amount not exceeding two hundred dollars." Feilletl v. Rngler, 8 Cal. 76; Zander v. Coe, 5 Cal. 230; Ford v. Smith, 5 Cal. 331; Brock v. Bruce, 5 Cal. 279; Hart v. Morn, 6 Cal. 161; Freeman v. Powers, 7 Cal. 104; Small v. Gwinn, 6 Cal. 447: Malson v. Vaughn, 23 Cal. 61. But since 1863 the jurisdiction has been established at anv sum not amounting to three hundred dol- lars. 'Cariaga v. Dryden, 29 Cal. 307: Maxfield V. Johnson, 30 Cal. 545; see Reed v. Bernal, 40 Cal. 629. Justices' courts would have no juris- diction where a defendant sets up a counterclaim for a sum exceeding three hundred dollars. Max- field V. Johnson, 30 Cal. 545. Plaintiff c .m- ineneed three actions in a justice's court for the recovery of the same property, the action being againslseveral defendants. The property sued for was of value less than three hundred dollars. Tender § 1048 of this code ( •! 526) the several ac- tions were consolidated. The court held, the value of the propertv being less than three hundred dol- lars, that; the justice had jurisdiction. Cariaga v. Dryden. 29 Cal. 307. 8. Trespass on real property. A justice's court has jurisdiction of an action of trespass on real property, the damages claimed being less than three hundred dollars. Pollock v. Cummings, 38 Cal. 683. But the right of possession miist not be put in issue. Cornett v. Bishop. 39 Cal. 319. 9. Damages for Injury to, or detention of, min- ing claims. It wa:^ held that ju.stices' courts could not take jurisdiction of suits to recover damages for ininrv to a mining claim, or for its detention. Van Etten v. Jilson, 6 Cal. 19. 10. Damage for diversion of water. Water rights. A justice of the peace has no power con- ferred upon him to try a cause, where there is an alleged injury aiising out of a diversion of wafer from the natural or artificial channel in which it is conducted. Hill v. Newman, 5 Cal. 445; 63 Am. Dec. 140. 11. Action for penalty for charging excessive fare by railroad company. See Reed v. Omnibus R. R. Co.. 33 Cal. 212. 12. Judgment on confession of defendant. Feil- lett V. Engler.. 8 Cal. 76. §113. Concurrent jurisdiction. The justices' courts shall have ennenr- 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 upon or unlaw^fully detained does not exceed twenty-five dollars per month, and the whole amount of damages claimed does not ex- ceed two hundred dollars; §114 JUSTICES COURTS. 76 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 three hundred dollars. of damages claimed must not exceed two hundred dollars; and 2. That the rental value of the property must not exceed twenty-five dollars a month, as a matter of fact (Ballerino v. Bigelow, 90 Cal. 500; 27 Pac. 372); and this amount must be computed bv excluding interest. Hoban v. Ryan, 130 "Cal. 96; 62 Pac. 296. Where the plaintiff seeks to have the damages trebled, and by so doing exceeds the juris- dictional amount, the court is ousted of jurisdiction (Hoban v. Eyan, 130 Cal. 96; 62 Pac. 296), and also where the evidence shows that the rental involved is in excess of twenty-five dollars a mouth, as jurisdic- tion cannot be conferred by the fictitious framing of a complaint to bring the action within the jurisdictional amount, and thus deprive the defendant of the right to sub- mit his case to the proper tribunal. Bal- lerino V. Bigelow, 90 Cal. 500; 27 Pac. 372. See Concurrent jurisdiction. See Const., art. vi, § 11. Concurrent jurisdiction in action for forcible entry and detainer. See post, § 1163. Forcible entry. See post, §§ 1159 et seq. Legislation § 113. Added by Code Amdts. 1880, p. 3.5. The original § 113 provided for terms and elec- tion of justices of the poacc. See ante, § 110. Actions of forcible entry and detainer. Justices' courts have jurisdiction concur- rent with the superior court in cases of unlawful detainer, where the amount in- A'olved brings the action within this sec- tion. Ivory V. Brown, 137 Cal. 603; 70 Pac. 657. The constitutional provision of 1849 giving justices' courts jurisdiction in actions in forcible entry and detainer was held to include unlawful detainers (Caul- field v. Stevens, 28 Cal. 118; Brummagim V. Spencer, 29 Cal. 661; Meeham v. Mc- Kay, 37 Cal. 154; Johnson v. Chely, 43 Cal. 299) ; and this section is given the same construction. Ivory v. Brown, 137 Cal. 603; 70 Pac. 657. The test of jurisdiction in such actions is: 1. That the whole amount Concurrent and conflicting jurisdiction. note 29 Am. St. Rep. 310. Eight to control action as between two courts of concurrent jurisdiction. See note Ann. Cas. 1912A, 150. § 114. Civil jurisdiction restricted. Except as in the last preceding sec- tion provided, the jurisdiction of the justices' courts shall 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 without the waters of this state. Not to trench upon jurisdiction of courts of record. See Const., art. vi, § 11. Actions against vessels. Post, §§813 et seq. Legislation § 114. 1. Enacted March 11, 1873, as § 115, and then read: "The jurisdiction con- ferred by the last section shall not extend, how- ever: 1. To a civil action in which the title or possession of real property is put in issue; 2. Nor to an action or proceeding against ships, ves- sels, or boats, or against the owners or masters thereof, when the suit or proceeding is for the recovery of seamen's wages for a voyage per- formed in whole or in part without the v/aters of this state." 3. Amended by Code Amdts. 1873-74, p. 399, and the words "or against the owners or masters thereof" omitted. 3. Amended by Code Amdts. ISSO, p. 36, and renumbered § 114. The original § 114 defined the civil jurisdiction of justices' courts. Sec ants, § 112. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 340. Cases involving title or possession of real prop- erty. The constitution confers on the district courts original jurisdiction in all cases at la->v which involve the title or possession of real prop- erty, and on the supreme court appellate jurisdic- tion in all such cases. Const., art. vi. S§ 4, 6. The ninth section of the same article of the con- stitution authorizes the legislature to fix by law the powers of justices of the peace, provided such powers shall not in any case trench upon the ju- risdiction of the several courts of record; and the act concerning the courts "f justice of this state and judicial officers provides that courts of jus- tices of the peace shall not have jurisdiction in a civil action in which the title or possession of real estate shall necessarily come in question. Laws 1863, p. 340, ^ 49. The objection suggested is un- tenable, because the action, though commenced in a justice's court for damages ia a sum less than three hundred dollars, upon the filing of the de- fendant's answer involved a question of title to the land on which stood the fence that was de- stroyed. The cause was transferred from the jus- tice's court to the district court, upon the filing of the defendant's verified answer, showing that the determination of the action would necessarily involve the decision of a question of title to real property, as provided by the five hundred and eighty-first section of the Practice Act (post, § 838), and upon its becoming so transferred, the district court obtained complete jurisdiction in the premises. Doherty v. Thayer, 31 Cal. 144, 145. In llolman v. Taylor, 3l"Cal. 338, the title of the respective parties to certain parcels of real estate was in issue, and ia ascertaining the mean- ing of the clause of the constitution, "all cases at law which involve the title or possession of real property," the subject of possession was con- sidered, but only by way of argument, and for the purpose of illustration ; and in the discussion the language of the court was not in all respects sufficiently guarded and definite. To constitute a case which involves the possession of real prop- erty, it is not enough that the possession is a fact in controversy, or incidentally in question, or that the fact of possession is in issue; but the right' of possession must be involved in the action. The paraphrase of the clause of the constitution, given in Holman v. Taylor, would be more accurate, and would nvire fully e.xpress the meaning of that clausi', if given in this language: "Cases at law in which the title or right of possession of real 77 POLICE COURTS PROVIDED FOR IN POLITICAL CODE. §§ 115-121 property is a material fact in the case, upuii which the plaintiff relies for a recovery, or the defend- ant for a defense." The allcKation of the rinht of possession is quite diffcreni from that of ims- session in fact, which may constitute merely the basi.s of some rifjht or claim con.stitutinc the cause of action, or tlie defense to the action. In an action for use and occupation, the possession of the defendant may he alleged on the one side and denied on the other without presenting an issue as to the right of possession. And so, in an ac- tion of trespass upon real property, the plaintiff may recover upon allepring and showing, in addi- tion to the injury complained of. his possession of the premises, and his right to the possession is not involved unless the defendant tenders an issue upon that fact, and in such case, as was said in llolman v. Taylor, the right of recovery depends hoth upon possession in fact and the right of possession. It was not the intention to with- draw from justices of the peace and oilier inferior courts, and confer upon the district courts, ju- risdiction of cases of the character of those men- tioned, in which the riglit of possession is not involvtd; hut it was intended to give to the latter courts jurisdiction of cases involving the right of possession of real property. Pollock v. Cummings, 38 Cal. 085. See also Cornett v. Hishop, 39 Cal. 319; Cullen ▼. Langridge, 17 Cal. 69. §115. [Related to criminal jurisdiction. Repealed.] Act conferring power to act as police judges. Act of .Stats. 1S8H, p. 6.3, was superseded by § 103, ante, as amended by Stats. 1901. p. 100. Legislation § 115. 1. Enacted March 11, 1S73, as § 117. 2. Amended by Code Amdts. 1873-74, p. 283. 3. Amended by Code Amdts. 1880, p. 36, and renumbered § 11.5 in amending Part I. 4. Repeal by Stats. 1901, p. 120; unconsti- tutional. See note ante, § fy. 5. Repealed by Stats. 1907, p. 682; the code commissioner saying, "Repealed, as it related wholly to prosecution of public offenses, and its provisions were incorporated in the Penal Code, § 142.5, as amended in 1905." Stats. 1905, p. 705. § 116. [Subject-matter amended, and section renumbered.] Legislation § 116. 1, Enacted March 11, 1873. 2. Repealed by Code Amdts. 1880, p. 21, in amending Part I. § 117. [Subject-matter amended, and section renumbered.] Legislation § 117. 1. Enacted March 11, 1872. 2. Amended by Code Amdts. 1873-74, p. 283. 3. Amended by Code Amdts. 1875-76. 4. Repealed by Code Amdts. 1880, p. 21, in amending Part I. § 118. [Subject-matter amended, and section renumbered.] Legislation § 118. 1. Enacted March 11, 1873. 2. liepealed by Code Amdts. 1880, p. 21, in amending Part I. § 119. [Subject-matter amended, and section renumbered.] Legislation § 119. 1873-74, p. 383. 1. Added by Code Amdts. 3. Repealed by Code Amdts. 1880, p. 21, in amending Part I. CHAPTER VI. POLICE COURTS. § 121. Provided for in Political Code. § 121. Provided for in Political Code. Police courts are established in incorporated cities and counties, cities and towns, and their organization, jurisdiction, and powers provided for in the Political Code, part four. Grew V. Mayor and Board of Trustees, 55 Cal. 611; People v. Ransom, 58 Cal. 558; Jenks V. Council of City of Oakland, 58 Cal. 576; Coggins v. Sacramento, 59 Cal. 599; Kahn v. Sutro, 114 Cal. 316; 33 L. R. A. 620; 46 Pac. 87; People v. Provines, 34 Cal. 520) ; and police judges, though judi- cial officers, are also municipal officers. People V. Henry, 62 Cal. 557. CODE COMMISSIONEES' NOTE. ' People v. Provines, 34 Cal. 520. Proceedings in civil actions. See post, §§ 929 et scq. Pohce courts generally, their organization and jurisdiction. .See Pol. Code, § § 4424 et seii. Act transferring business to, after new consti- tution. See Stats. 1880, p. 2 (Bancroft ed., p. 2). Legislation § 121. 1. Enacted March 11, 1873, 3. Amended by Code Amdts. 1880, p. 36, and the words "cities and counties" added. Police courts. Police courts constitute part of the courts of the state, and police judges part of the judiciary (Ex parte Henshaw, 73 Cal. 486; 15 Pac. 110; Mc- §§ 124, 125 GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE. 78 CHAPTER VII. GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE. Article I. Publicity of Proceedings. §§ 124, 125. II. Incidental Powers and Duties of Courts. §§ 128-13L III. Judicial Days. §§ 133-135. IV. Proceedings in Case of Absence of Judge. §§ 139, 140. V. Provisions respecting Places of Holding Courts. §§ 142-144. VI. Seals of Courts. §§147-153. ARTICLE I. PUBLICITY OF PROCEEDINGS. § 124. Sittings, public. §125. Sittings, when private. § 124. Sittings, public. The sittin public, except as provided in the next Publicity of proceedings. U. S. Const., art. vi, § 1, Amdts. Legislation § 124. 1. Enacted March 11, 1873 ; ba.sed on Stats. 1863, p. 342. 3. Amended by Code Amdts. 1880. p. 36, and the word, "are" changed to words "shall be." Public sittings. "A public trial" means one not held in secret. People v. Swafford, 65 Cal. 223; 3 Pac. 809. The trial should be public, in the ordinary, common-sense acceptation of the term; the doors of the courtroom kept open; the public admitted; the trial public in all respects; with due regard to the size of the courtroom and the conveniences of the court, with the right in the court to exclude objectionable characters as well as youths of tender years, and to do other things which may facilitate the proper conduct of the trial. People V. Hartman, 103 Cal. 242; 42 Am. St. Rep. 108; 37 Pac. 153. The exclusion of spectators from the courtroom during § 125. Sittings, when private. In an action for divorce, criminal conver- sation, seduction, or breach of promise of marriage, the court may direct the trial of any issue of fact joined therein to be private, and may exclude all persons except the officers of the court, the parties, their witnesses, and coun- sel; 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. gs of every court of justice shall be section, the trial, against the objection of defend- ant, is a violation of the constitution; and injurv to the defendant will be presumed (People v. Hartman, 103 Cal. 242; 42 Am. St. Rep. 108; 37 Pac. 153; and see People v. Kerrigan, 73 Cal. 222; 14 Pac. 849), but this right to a public trial may be waived by the defendant (People v. Tarbox, 115 Cal. 57; 46 Pac. 896), and, in the absence of any showing, it will be presumed that an excluding order was with the consent of the defendant. People v. Swafford, 65 Cal. 223; 3 Pac. 809. An order excluding from the courtroom all persons, except the judge, jurors, witnesses, and persons con- nected with the cause, does not violate this statutory provision. People v. Swafford, 65 Cal. 223; 3 Pac. 809; People v. Tarbox, 115 Cal. 57; 46 Pac. 896; People v. Kerrigan, 73 Cal. 222; 14 Pac. 849. CODE COMMISSIONERS' NOTE. Stats. 1863. p. 842. Records in divorce and attachment proceedings to be kept secret. See Pol. Code, § 1032. Exclusion of witnesses. Post, § 2043. Legislation § 125. 1. Enacted March 11, 1873 (based on Stats. 1863, p. 342), and then read: "§ 125. In an action for divorce the court may direct the trial of any issue of fact .ioined therein to be private, and may exclude all persons, ex- cept the officers of the court, the parties, their witnesses, and counsel." 3. Amended by Code Amdts. 1873-74, p. 284, the text then reading as at present, except that it did not have proviso. 3. Amended by Code Amdts. 1880, p. 36, and proviso added. Private sittings. This section, permit- ting private sittings of the court, does not ap[)ly to criminal cases, but only to civil actions. People v. Hartman, 103 Cal. 242; 42 Am. St. Rep. 108; 37 Pac. 153. The object of this section is to secure decorum in the conduct of trials involving the rela- tion of the sexes, and to protect witnesses of refined sensibilities from giving testi- mony of a delicate or filthy nature in the presence of a crowd of vulgar or curious spectators; it was not intended for the protection of the public from the influence of revelations often made in such cases, nor to prevent the publication of the evi- dence. In re Shortridge, 99 Cal. 526; 37 Am. St. Rep. 78; 21 L. R. A. 755; 34 Pac. 227; Ann. Cas. 1912B, 542, note. CODE COMMISSIONERS' NOTE. Stats. 1863^ p. 342. 79 POWERS RESPECTING CONDUCT OF PROCEEDINGS. §128 ARTICLE 11. INCIDENTAL POWERS AND DUTIES OF COURTS. I 131. Probationary treutment of juvenile of- foLdurs. 5 128. Powers respecting condiu-t of proceedings. § 129. Courts of record may make rules. I 130. When rules take effect. § 128. Powers respecting conduct of proceedings. Every court shall have power : 1. To preserve and enforce order in its immediate presence; 2. To enforce order in the proceedings before it, or before a person or per- sons empowered to conduct a judicial investigation under its authority; 3. To provide for the orderly conduct of proceedings 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 conduct 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 testify in an action or proceed- ing pending therein, in the cases and manner provided in this code ; 7. To administer oaths in an action or proceeding 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 con- formable to law and justice. Control conduct of persons connected with proceedings. The court may order the defendant to allow an expert witness of the plaintiff to examine the machinery of the defendant, in an action for damages occasioned by negligence. Clark v. Tulare Lake Dredging Co., 14 Cal. App. 414, 439; 112 Pac. 564. Where the plaintiff, in an action to recover for personal injuries, offers the testimony of attending physi- cians to prove the nature and extent of the injuries sustained, the court has power, and it is its duty, to order a physical ex- amination in the presence of the plaintiff's physicians and physicians of the defend- ant, to ascertain the nature and extent of such injuries. Johnston v. Southern Pacific Co., 150 Cal. 535; 11 Ann. Cas. S41; 89 Pac. 348. Compel attendance of witnesses. The court has power, under this section, to compel the attendance of witnesses con- fined in the state prison. Willard v. Sujie- rior Court, 82 Cal. 456; 22 Pac. 1120. Amendment of process. The court has power to amend its process, pending its service. Baldwin V. Foster, 157 Cal. 643; 108 Pac. 714. Control over process. The court wherein judgment is entered has control of such judgment, and authority to direct issuance and execution of process thereunder, in the interest of the party entitled thereto; and necessarily, as incidental to such power, that of determining, in any instance, who is entitled to such process. Kowe v. Blake, Power of judicial officers. See post, § 177. Contempt. See post, § 1209. In justice's court. See post, §§ 906 et seq. Subd. 6. Attendance of witnesses. See post, §§ 1985 et seq. Subd 7. Administration of oaths. See post, §§ 2093 et seq. Legislation 8 128. 1. Enacted March 11,1873; based on Stats. 1863, p. 342, and on New York code. 3. Amended by Code Amdts. 1880, p. 37, and words "Every court has power" changed to "Every court shall have power." Power over conduct of proceedings. It is important that courts of justice should be upheld in the enforcement of all neces- sary and reasonable rules for the orderly, speedy, and effective conduct of their du- ties. People V. Kerrigan, 73 Cal. 222; 14 Pac. 849; People v. Swafford, 65 Cal. 223; 3 Pac. 809. Obedience to orders and judgments. This section provides power to compel obedi- ence to judgments, orders, or processes (Ex parte Smith, 53 Cal. 204); and when an act is within the power of the party to perform, the court may direct him to be imprisoned until he complies with its order. Ex parte Latimer, 47 Cal. 131 ; People v. Center, 54 Cal. 236; Ex parte Kellogg, 64 Cal. 343; 30 Pac. 1030. Control conduct of ministerial officers. For the purpose of appeal, the supreme court has power to control the conduct of the clerk of the trial court. People v. Cen- ter, 54 Cal. 236; Winder v. Hendrick, 54 Cal. 275; Duncan v. Times-Mirror Co., 109 Cal. 602; 42 Pac. 147. §129 GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE. 80 aside an order inadvertently made, the court is not bound by the record, but may receive evidence for that purpose. Kauf- man V. Shain, 111 Cal. 16; 52 Am. St. Eep. 139; 43 Pae. 393. This power may be exer- cised at anv time (Kaufman v. Shain, 111 Cal. 16; 52' Am. St. Eep. l.'^g; 43 Pac. 393; Crim V. Kessing, 89 Cal. 478; 23 Am. St. Eep. 491; 26 Pac. 1074; Egan v. Egan, 90 Cal. 15; 27 Pac. 22), even after an appeal, a judgment of affirmance, and the issuance of execution. Eousset v. Boyle, 45 Cal. 64; Sheldon v. Gunn, 57 Cal. 40; Boyd v. Bur- re), 60 Cal. 280; People v. Murback, 64 Cal. 369; 30 Pac. 608. Power of courts to punish contempts. See note 12 Am. Dec. 178. Power of courts to compel parties to convey land or surrender property or children situated in another state. See note 67 Am. Dec. 95. Power to punish for contempt at chambers or in vacation. See note Ann. Cas. 1913B, 35. Power of magistrate to punish for contempt. See note 1 L. R. A. (N. S.) 1135. CODE COMMISSIONERS' NOTE. Subdivisions 1, 2, 4, and the first clause of subdivision 5, sub- stantially embrace the provisions of § 65 of the act of 1863 (Stats. 1863, p. 342); the other sub- divisions are taken from the New York code, be- cause they concisely embody various statutory provisions scattered through our laws, or well-set- tled common-law principles, applicable to the powers of judicial tribunals. This arrangement presents them in a form convenient to the profes- sion, and in their logical order. 112 Cal. 637; 44 Pac. 1084; McAuliffe v. Coughlin. 105 Cal. 268; 38 Pac. 730. Control over record. Every court of rec- ord has the inherent right and power to cause its acts and proceedings to be cor- rectly set forth in its records; the clerk is but an instrument and assistant of the court, whose duty it is to make memorial of its orders and directions; and whenever it is brought to the knowledge of the court that the record made by the clerk does not correctly show the order or direction which Avas in fact made by the court at the time it was given, the authority of the court to cause its record to be corrected in accord- ance with the facts is undoubted. Kauf- man V. Superior Court, 115 Cal. 152; 46 Pac. 904; Crim v. Kessing, 89 Cal. 478; 25 Am. St. Eep. 491; 26 Pac. 1074. While the court has power to correct and set aside an order entered inadvertently, j'et it has no authority to do any more than to make those records correspond with the actual facts; it cannot, under the form of an amendment, correct a judicial error, nor make of record an order or judgment which was never in fact given or made (Kauf- man v. Shain, 111 Cal. 16; 52 Am. St. Eep. 139; 43 Pac. 393; People v. Curtis, 113 Cal. 68; 45 Pac. 180; People v. Durrant, 116 Cal. 179; 48 Pac. 75); and to correct or set § 129. Courts of record may make rules. Every court of record may make rules not inconsistent with the laws of this state, for its own govern- ment and the government of its officers ; but such rules shall neither impose any tax, charge or penalty upon any legal proceeding, or for filing any pleading allowed by law, nor give any allowance to any officer for services. When rules take effect. Post, § 130. from their operation, whenever the pur- Legislation § 129. 1. Enacted March 11,1873; poscs of justice require it (People v. Wil- based on Practice Act, § 643, which read: "The liams, 32 Cal. 280; Pickett V. Wallace 54 supreme court may make rules not inconsistent fjo] 147. c;,,lKvnTi v WqUq^o' 7-5 r'oi -in-. with the constitution and laws of the state, for Vf r>V ' ^ln\ ^^ ^ ' JT ^^^^^J^> '^ ^^^- -^^'^ its own government, and the government of the ■'-f J^a<^- 1'^^), .Yet tile rules cannot be district courts, aud the superior court of the city of San Francisco; but such rules shall not be in force until thirty days after their adoption and publication." (The superior court of San Fran- cisco was abolished May 1, 1857.) When en- acted in 1872, the first clause of this section was the same as the amendment of 1880 and of the present amendment (1913), the second clause then reading, "but such rules must neither im- pose a tax or charge upon any legal proceeding nor give an allowance to anv officer for services." 2. Amended by Code A'mdts. 1880, p. 37, changing the second clause to read, "but such rules shall neither impose any tax or charge upon any legal proceeding, nor give any allowance to any officer for services." 3. Amended by Stats. 1913, p. 90, the changes being in the second clause. Power to make rules. The rules of court are but the means to accomplish the ends of justice (Pickett v. Wallace, 54 Cal. 147), and may be altered or amended from time to time, as the ends of justice or the con- venience of the court require. Meyer v. Tupper, 66 U. S. (1 Black) 522; 17 L. Ed. 180; Ex parte Thistleton, 52 Cal. 220. Although the court has power to suspend its own rules, or except particular cases changed to deprive a party of a statutory- right. People v. McClellan, 31 Cal. lOi. Eules cannot contravene the statutes of the state (Estate of Jessup, 81 Cal. 408; 6 L. E. A. 594; 21 Pac. 976; 22 Pac. 742, 1028; People v. McClellan, 31 Cal. 101), and the parties have no unqualified right to stipulate for their abrogation. Eeynolds V. Lawrence, 15 Cal. 359. They must be construed the same as statutes are con- strued (Hanson v. McCue, 43 Cal. 178), and they bind the court, as well as the suitor, until they are abrogated. Hanson V. McCue, 43 Cal. 178. Subjects governed. Such rules may pre- scribe the time for filing transcripts on appeal (McKay v. Superior Court, 86 Cal. 431; 25 Pac. 10); and may require a de- posit of the clerk's costs, on appeal from a justice's court. Behvmer v. Superior Court, 18 Cal. App. 464 j 123 Pac. 340. A rule of the supreme court, requiring points and authorities in behalf of the respective parties to be filed within a specified time 81 rROBATIONARY TREATMENT OF JUVL'NIT.E OFFENDERS. §§ 130, 131 after the filiii<,' of tlie transcript confers rules he must incoriiorate them in tlie rec- rights that may be enforced liy ]iti<,'ants. onl. Cutter v. f'aruthers, 48 Cal. 178; Barnhart v. Conlcy, 17 Cal. App. 23U; 119 Sweeney v. Stanford, 60 Cal. 3G2. i."" '• -. , mi- ^ •,. Rules Of court. Sir note 41 Am. .St. Rep. 639. Proof of rules. Ihe supreme court will v.-ilidity of court rule in contravention of oom- not take judicial notice of the rules of niou law or statute. Sc<- ncitc 19 Ann. Cas. 801. the superior court (Warden v. Men. .,..,,•' -, A fnr^^-^^ 3. Amended by Stats. 1907, p. 681; the code judicial days. In re Gannon, b9 Cal. o41; commissioner saying, "The change strikes out j]^ Pac. 240. Daily adjournments mav be the words 'for one week.' Neither the sheriff , -, n f ^^ ~.p„i, ThoTPaq v Fof/artv nor the clerk can, under the constitution, be au- , ^"i , ^ ,^ ^"^ ^®® " -^'^O'"^^ ^- -^ Ogarty, thorized to adjourn court, and thus close it fur 19 Lai. d44. a definite time, other than from day to day." Meaning of "absent" or "absence" aa applied Adjournment by clerk or sheriff. The to judge. See note Ann. Cas. 1912C, 353. in 1 P m«v nnpn thp cniirt «t -nv hour bp- CODE COlVnvUSSIONEES' NOTE. Stats. 1863. ludge ma^ open the court at ^n) Hour De 3^^ Thf^mas v. Fogany, 19 Cal. 644; People fore the close of the day where it had been y Sanchez, 24 Cal. 17. §140. [Adjournment till next regular session. Repealed.] Sessions. Ante, § 73. tutional. See note ante, § 5. ■ , ..■ o 1 ^n - -r. . J -..^ , , 1 -. o~o ■*. Repealed by Stats. 1907, p. 681 ; the code Legislations 140. 1. Enacted March 11, 18.3. commissioner saving, "Repealed, because both un- 2. Amended by Code Amdts. 1880, p. 38. necessary and unconstitutional." 8. Repeal by Stats. 1901, p. 120; unconsti- ARTICLE V. PROVISIONS EESPECTING PLACES OF HOLDING COURTS. S 142. Change in certain cases of place of hold- § 143. Parties to appear at place appointed. ing court. § 144. When sheriff to provide courtrooms, etc. § 142. Change in certain cases of places of holding court. 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 county, count}", city, or town than that appointed, when war. insurrection, pestilence, or other public calamity, 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. Legislation § 142. 1. Enacted March 11, 1873 the court, may render it necessary; and may, in (based on Stats. 1863, p. 344), and then read: the same manner, revoke the order, and, in his "A judge authorized to hold or preside at a court discretion, appoint another place in the same city, appointed to be held in a county, city, or town, town, or county, for holding the court." may, by an order filed with the county clerk, and 2. Amended by Code Amdts. ISSO, p. 38. Dublished as he mav prescribe, direct that the - . . , .......... .^._ .^._ ?our be held or continued at any other place in ,„,^°^" °f ^"^^ court to sit at place other than the citv, town, or county than that appointed. county seat. See note 8 Ann. Cas. 939. when war, insurrection, pestilence, or other pub- CODE COMMISSIONERS' NOTE. Stats. 1863, lie calamity, or the dangers thereof, or the de- p_ 344_ struction of the building appointed for holding § 143. Parties to appear at place appointed. When the court is held at a place appointed, as provided in the last section, every person held to ap- pear at the court m.ust appear at the place so appointed. Legislation § 143. 1. Enacted March 11, 1872; CODE COMMISSIONERS' NOTE. Stats. 1863.. bas(-d on Stats. 1863, p. 344. p. 344. 2. Re-enacted by Code Amdts. 1880, p. 39, in amending Part I. § 144. When sheriff to provide courtrooms, etc. If suitable rooms for holding the superior courts and the chambers of the judges of said courts are not provided in any county by the supervisors thereof, together with the attendants, furniture, fuel, lights and stationery, sufficient for the trans- action of business, the courts, or the judge or judges thereof, may direct the sheriff of the county to provide such rooms, attendants, furniture, fuel, lights 87 WHAT COURTS SHALL HAVE SEALS — SEAL OF SUPREME COURT. §§ 147, 148 and stationery; and the expenses incurred, certified by the jud^'e or jnd£?es to be correct, are a charge against the county treasury, and must be paid out of the general fund thereof. against the founty for suitable rooms for lioliiiiif,' court, an), tiud then n-ad : "If suitable rooms for holding the district courts, county courts, and probate courts, and the cham- bers of the judges of such courts, be not pro- vided in any county by the supervisors thereof, together with attendants, furniture, fuel, lights, and stationery sufHcient for the transaction of business, the courts may direct the sheriff of such county to provide such rooms, attendants, furniture, fuel, lights, and stationery, and the ex- penses thereof are a charge against such county." 2. Amended by Code Amdts. 18SO. p. 3;)," to read as at present, except for the changes noted by the code commissioner, infra, and those brack- eted in and following his not<'. 3. Amendment by Stats. 1901, p. 120; un- constitutional. See note ante, § 5. 4. Amended by Stats. 1907. p. 680; the code commissioner saying, "The amendment consists in [(!)] the insertion of the word 'county' in place of 'city and county,' where those last words occur in the section, and in omitting the words 'city and county [, or]' when they occur earlier in the section, they being unnecessary in view of the amendment to § 17 adopted in 1903 (Stats. 1903, p. 134)"; (2) changing the words "courts be not" to "courts are not"; (3) changing the words "shall be a charge" to "are a charge" ; and (4) changing, in the last line, the words "and paid out" to "and must be paid out." Power to provide courtrooms. This sec- tion gives the court power to create charges CODE COMMISSIONERS' p. 345. ARTICLE VI. SEALS OF 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 coun- ties. § 151. Seals, how provided; private seals, when used. § 152. Clerk of court to keep seal. § 153. Seals of courts, to what documents af- fixed. § 147. What courts shall have seals. 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. 1. Defined. 2. Of court, judicial notice taken of. Post, § 1875, subd. 4. 3. Court commissioner may provide o£Bcial. Post. S 259, subd. 5. Police courts. 1. Are not courts of record. See ante, §§33, 84. 2. Have a seal. Post, § 150. Legislation § 147. 1. Enacted March 11. 1872 (based on Stats. 1863, p. 344), and then read: "Each of the following courts has a seal: 1. The supreme court; 2. The district courts; 3. The county courts; 4. The probate courts; 5. The mu- nicipal criminal court of the city and county of San P^rancisco; 6. The police court of the city and county of San Francisco." 2. Amended by Code Amdts. 1880, p. 39. Effect of seal. The fact that a court has a seal does not necessarily, and of itself, make such court a court of record- Ex parte Thistlcton, 52 Cal. 220. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 344. § 148. Seal of supreme court. The seal used by the supreme court, abol- ished by the constitution, shall be the seal of the supreme court herein pro- vided for; but the said court may direct the clerk of the supreme court to provide two duplicates of said seal, each of Avhich shall be considered the same as and have the same force and effect as the original. Legislation § 148. 1. Enacted March 11, 1872 (based on Stats. 1863, p. 344), and then read: "The seal now used by the supreme court shall be the seal of that court ; and where seals have been provided for the district, county and pro- bate courts, municipal criminal and the police court of the city and county of San Francisco, such seals shall continue to be used as the seals of those courts." 2. Amended by Code Amdts. 18SO. p. 39. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 344. §§ 149-153 GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE. 88 § 149. Seals of superior courts. 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 sui^rounding the same: "Superior Court , Cali- fornia," inserting 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. Validating writs, process, and certificates is- For the district courts: 'District Court, sued from superior courts before seal provided. County, California.' (Inserting the name of the See Stats. 1880, p. 19. county;) 2. For the county courts : 'County Court. T„^joi ^'^^a^4n t -c .jtvt u -i -i h o ->"> County, California.' (Inserting the name Legslatxon§149. 1. Enacted March 11, 1873 ^f the county;) 3. For the probate cSurts: 'Pro- (based on Stats 1863, p. 344) and then read. ^^^^^ Court, County, California.' (Insert- •The several district, county, and probate courts, j ^j^^ ^^^^^ ^^ ^^^^ county.)" for which separa e seals have not been heretoiore g^ Amended bv Code Amdts. 1880, p. 39. provided, shall direct their respective clerks to ■ ' ^ procure seals, which shall be devised by the re- CODE COMMISSIONERS' NOTE. Stats. 1863, spective judges of such courts, and shall have the p. 344. following inscriptions surrounding the same: 1. § 150. Seals of police courts of cities and counties. The police court of every city and county may use any seal having upon it the inscription, "Police Court ," (inserting the name of the city and county). Legislation § 150. Added by Code Amdts. court may use his private seal, whenever a seal 18SO, p. 39; based on Stats. 1863, p. 344, and is required." original code § 150, both being identical, and rr^nf rmvnvTTcaTnvp-pcr •ktotx- Gf„f„ iokq reading, "Until the seals devised, as provided in o^? COMMISSIONERS'- NOTE. Stats. 1863, the last section, are procured, the clerk of each P- ^^4. §151. Seals, how provided ; private seals, when used. Courts which have not the necessary seal provided, or the judge or judges thereof, shall request the supervisors of their respective counties, or cities and counties, to provide the same, and in case of their failure to do so may order the sheriff to pro- vide the same, and the expense thereof shall be a charge against the county or city and county treasury, and paid out of the general fund thereof; and until such seal be provided the clerk of each court may use his private seal whenever a seal is required. Legislation § 151. Added by Code Amdts. original code supra, S 150, 1S80, p. 39; based on Stats. 1863, p. 344, and § 152. Clerk of court to keep seal. The clerks of the court shall keep the seal thereof. Legislation § 152. 1. Enacted March 11, 1873, keep the seal thereof." as j iji (bastd on Stats. 1863, p. 344), and 3. Amended by Code Amdts. 1880, p. 40, and then read: "§ 152. The clerk of the court must renumbered § 152. § 153. Seals of courts, to what documents affixed. 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 ex. ecutor, administrator, or guardian; 3. 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. Legislation g 153. 1. Enacted March 11, 1873, "seal of a court" were printed "seal of the court," as § 152 (based on Stats. 1863, p. 344), and and (2) the words "certificate of probate," "cer- then read: "The seal of the court need not be tificate of the probate." afiixed to any proceedings therein, except; 1. To 3. Amended by Code Amdts. 1880, p. 40, and a writ; 2. To the proof of a will, or the appoint- renumbered § 153. ment of an executor, administrator, or guardian; ^ „ .^.^ vnTV <5t.f= i obq 3. To the authentication of a copy of a record or CODE COMMISSIONERS' NOTE. Stats. 1863, other proceeding of the court, or an officer thereof, P- S'*-*- The provision permitting seals to be im- for the purpose of evidence in another court." pressed on paper is omitted as a general provis- 2. Amended by Code Amdts. 1873-74, p. 284, JO" 'o the same end is contained la the prelim- to read as at present, except that (1) the worda m-'^ry provisions of this code. 89 QUALIFICATIONS OF JUSTICES— RESIDENCE OF SUI'ERlOU JUDGES. §§ luG-158 TITLE II. JUDICIAL OFFICERS. Chapter I. Judicial Officers in General. §§ 156-102. If. Powers and Duties of Judges at Chambers. §§ 1C5-1G7, III. Disqualifications of Judges. §§ 170-173. IV. Incidental Powers and Duties of Judicial Officers. §§ 176-179. V. Miscellaneous Provisions respecting Courts and Judicial Olficcrs. §§ 182-188. CHAPTER L JUDICIAL OFFICERS IN GENEEAL. §156. Qualifications of justices of supreme court. §161. Justices and judges ineligible to other §157. Qualilications of superior judges. than judicial office. §158. Ktsidence of sujierior jud),'cs. § 1C2. County or probate judge who may hold § 159. Kesidence and qualification of justices of term in another county. How desig- the peace. nated. [Kepcaled.j § 160. Judges holding superior courts at request of governor. § 156. Qualincations of justices of supreme court. 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 before the supreme court of the state. Judge must be an attorney. Const., art. vi, 3. Repeal by Stats. 1901, p. 120; unronsti- § 23. tutional. See note ante, § 5. Legislation § 156. 1. Enacted March 11. 1878 Qualification Of judges. Under the old (bastd on Stats. 1863, p. 333), and then read: constitution, judges of the supreme court •No person is eligible to the office of justice of -^vere not required to be licensed attorneys. the supreme court who has not been a citizen of -r, ,„ „ ti.^_„.^,. qo r'«i one the United States and a resident of this state, for People V. Dorsev, 32 Cal. 296. two years next preceding his election." CODE COMMISSIONERS' NOTE. Stats. 1863, 2. Amended by Code Amdts. 1880, p. 40. p. 333. § 157. Qualifications of superior judges. No person shall be eligible to the office of judge of 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 prac- tice before the supreme court of the state. Legislation § 157. 1. Enacted March 11, 1873 Eligibility. Effect of promise nOt tO (based on Stats. 1863. p. 335), and then read: qualify. A promise bv a candidate for the No person is eligible to the office of district "* •' i , i ' ^ t^ -^ i j. t judge who has not been a citizen of the United ofifice, that he would not quality it elected, States and a resident of this state for two years, does not affect his eligibility. Bush V. and of the district one year next preceding his Head 154 Cal 277 • 97 Pac. 512. election." ' ' ' • -. 2. Amended by Code Amdts. 1880, p. 40. CODE COMMISSIONERS' NOTE. Stats. 1863, 3. Repeal by Stats. 1901, p. 121; unconsti- p. 335. People v. Turner, 20 Cal. 144; People v. tutional. See note ante, § 5. De la Guerra. 40 Cal. 311. § 158. Residence of superior judges. Each judge of a superior court shall reside at the county seat of tlie county in w-hich such court is held, or within three miles thereof, and within the county, except that in the counties 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. Separate judges provided for Sutter and Yuba and each county and probate judge must reside counties. Stats. 1897, p. 48. at the countv seat of his respective county." Legislation g 158. 1. Enacted March 11, 1872 2- A^^^^ed by Code Amdts 1880. P- «■ »» (based on Stats. 1863. p. 335), and then read: ^^f- ' K«^h judge of a %"P;/^°^ "'"' i'-''-^'L'"l "Each district judge must reside in his district, "de at the county Beat of the county in *h.ch !§ 159, 160 JUDICIAL OFPICEES IN GENERAL. 90 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." 3. Amended by Stats. 1891, p. 277. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 335. § 159. Residence and qualification of justices of the peace. 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 countj', in which he is to serve for one year next preceding his election or appointment. Legislation § 159. Added by Code Amdts. 1880, p. 41. The original § 159. enacted March 11, 1872 (based on Stats. 1863, p. 335), read: "A resi- dence in an}' part of the city and county of San Francisco is, within the meaning of the two pre- ceding sections, a residence in the judicial dis- tricts embracing portions of that city." Effect of change of boundaries of town- ships. Where the boundaries of a township are changed after the election or appoint- ment of a justice of the peace, so as to make him a non-resident, he is a de facto justice for that township, where he con- tinues to act, and his actions cannot be called in question in collateral proceedings. People V. Sehorn, 116 Cal. 503; 48 Pac. 495; People v. Eoberts, 6 Cal. 214; HuU v. Superior Court, 63 Cal. 174; People v. Hecht, 105 Cal. 621; 45 Am. St. Rep. 96; 27 L. R. A. 203; 38 Pac. 941. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 335. If bv rea- § 160. Judges holding superior courts at request of governor. son of sickness, absence, disability, or other causes, a regular session of the superior court cannot be held in any county by the judge or judges thereof, or by a superior judge requested b}' him or them to hold such court, a cer- tificate of that fact shall be transmitted by the clerk thereof to the governor, who may thereupon 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 re- quest of the judge or judges of said superior court, shall be allowed his actual and necessary expenses in going 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. of a trial, even in criminal cases, with the consent of the defendant. People v. Hen- derson, 28 Cal. 465. This section cannot be construed to refer to the disqualifica- tion of a judge on account of his interest in the matter involved in the proceeding, as mentioned in § 170, post. .John Heinlen Co. V. Superior Court, 17 Cal. App. 660; 121 Pac. 293. Presumption as to acts of judge holding court out of county. In the absence of a showing to the contrary, it is presumed that a judge holding court is acting under the proper authority. Estate of Newman, 75 Cal. 213; 7 Am. St. Rep. 146; 16 Pac. 887; Peonle v. Ah Lee Doon, 97 Cal. 171; 31 Pac. 933. Powers of judge out of county. The judge so holding court may grant exten- sions of time to make and serve a state- ment on motion for a new trial (Matthews V. Superior Court, 68 Cal. 638; 10 Pac. 128), and may send his findings from another court to the «lerk to be filed. Comstock Quicksilver Mining Co. v. Superior Court, 57 Cal. 625. Holding court for another Judge. Ante, § 71. Legislation § 160. i. Enacted March 11, 1873 (based on Stats. 1863, p. 336), and then read: ■"A district judge may hold a court in any county in this state, upon the request of the judge of the district in which such court is to he held; and when, by reason of sickness or absence from the state, or from any other cause, a court can- not be held in any county in a district by the judge thereof, a certificate of that fact must be transmitted by the clerk to the governor, who may thereupon direct some other district judge to hold such court." 3. Amended by Code Amdts. 1875-76, p. 85, by adding, at the end of the section, "A district judge may hear and determine motions in actions pending in any district, upon the request of the judge of the district in which the action is pend- ing, and the stipulation of the parties to the action. All decisions of such motions shall be filed and entered by the clerk of the court in which such action is pending." 3. Amended by Code Amdts. 1880, p. 41, to read as at present, e.xcept that, (1) in first line, a comma was used after the word "If," and the "word "causes" was printed "cause"; (2) a comma was used between the words "judge requested," and after the word "court" in the words "court at the request"; and (3) the words "or at the request of the judge or judges of said superior court," and the words "and necessary" before the word "expenses," were not used, as now. 4. Amended by Stats. 1887, p. 147. Change of judges during trial. The judges may be changed during the course CODE COMMISSIONERS' NOTE. Stats. 1863, p. 336. [See Cod« Commissioners' Note to § 161,, post.] 91 JUDGES INELIGIBLE TO OTHER THAN JUDICIAL OFFICE. §§ 161,162 §161. Justices and judges inelig^ible to other than judicial office. TIic justices of the supreme court and judges of the superior courts shall be in- eligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected. Ineligible to public employment. Const., art. CODE COMMISSIONERS' NOTE. See People Ti, § 18. V. MoUon, 40 Cal. G48. '1 he text held to be con- T arriciof4<'ho was dis- qualified from acting, under this section, prior to its amendment in 1905, was void. Johnson v. German -American Ins. Co., 150 CaL336; 88 Pac. 985. judge formerly counsel in the proceed- ing. The judge, having been an attorney or counsel in the proceeding, is disquali- fied (Barnhart v, Fulkerth, 59 Cal. 130; Finn v. Spagnoli, 67 Cal. 330; 7 Pac. 740), and he is also disqualified where he re- ceived a general retainer from one of the parties (Kern Valley Water Co. v. McCord, 70 Cal. 646; 11 Pac. 798); but he is not disqualified where he had previously been the attorney in another action for one of the parties, although such action involved one of the issues in the case on trial. Cleg- horn v. Cleghorn, 66 Cal. 309; 5 Pac. 516. Bias and prejudice. The bias and preju- dice of the judge was not a ground for disqualification before the amendment of this section in 1897, when the fourth sub- division was added (People v. Mahoney, 18 Cal. 180; People v. Graham, 21 Cal. 261; People V. Williams, 24 Cal. 31; People v. Shuler, 28 Cal. 490; Hibberd v. Smith, 39 Cal. 145; Bulwer Cons. Mining Co. v. Standard Cons. Mining Co., 83 Cal. 613; 23 Pac. 1109; Patterson v. Conlon, 123 Cal. 453; 56 Pac. 105); and even the expression of an unqualified opinion did not then dis- qiialify a magistrate from holding a pre- liminary examination (McCauley v. Weller, 12 Cal. 500), as the law established a different rule for determining the disquali- fication of judges from that applied to jurors. McCauley v. Weller, 12 Cal. 500; People V. Mahoney, 18 Cal. 180. The filing of an affidavit showing bias and prejudice was then a contempt of court (In re .Tones, 103 Cal. 397; 37 Pac. 385); but, since the amendment of 1897, facts showing bias and prejudice, being pertinent and rele- vant, do not constitute contempt. Works V. Superior Court, 130 Cal. 304; 62 Pac. 507. If the affidavit, however, fails to state any facts, and makes charges of cor- ruption against the judge, upon belief merely, it is contempt of court (Lamber- son V. Superior Court, 151 Cal. 458; 11 L. R. A. (N. S.) 619; 91 Pac. 100), and the judge is not disqualified from hearing said contempt proceedings by reason of the fact that his integrity has been so at- tacked. Id. Affidavits of bias and prejudice. The right to make and file affidavits is not re- stricted to any particular party. Parrish V. Riverside Trust Co., 7 Cal. App. 95; 93 Pac. 685. Upon a motion to call in an- other judge, the judge whose bias is alleged 170 DISQUALIFICATIONS OP JUDGES. 96 must himself decide the motion, but he must decide it upon the facts averred in the affidavits, without reference to his own knowledge of his own state of mind. Hoyt V. Zumwalt, 149 Cal. 381; 86 Pac. 600; Swan V. Talbot, 152 Cal. 142; 17 L. E. A. (N. S.) 1066; 94 Pac. 238. Under the law prior to the addition of the fourth sub- division, the judge might act upon his own knowledge as to his condition of mind (Southern California Motor Road Co. v. San Bernardino Nat. Bank, 100 Cal. 316; 34 Pac. 711); but, under the present sec- tion, the knowledge or belief of the judge as to his qualification cannot affect the fact of his disqualification. Adams v. Minor, 121 Cal. 372; 53 Pac. 815. Unveri- fied statements of the judge cannot be considered in determining the question. Morehouse v. Morehouse, 136 Cal. 332; 68 Pac. 976; People v. Compton, 123 Cal. 403; 56 Pac. 44. Even if the judge knows him- self to be disqualified in fact, he cannot deny the motion, if the contrary appears from the affidavit on file. People v. Comp- ton, 123 Cal. 403; 56 Pac. 44. The dis- qualification of the judge is to be deter- mined wholly from the affidavits and counter-affidavits on file, and if there is no conflict upon the affidavits showing bias and prejudice, the court must grant a change of venue (People v. Compton, 123 Cal. 403; 56 Pac. 44; Bassford v. Earl, 162 Cal. 115; 121 Pac. 395; People v. Comp- ton, 123 Cal. 403; 56. Pac. 44), but in case of conflict the court may pass upon the question of bias and prejudice (Peo- ple v. Eodley, 131 Cal. 240; 63 Pac. 351), and determine his own qualification. Tal- bot V. Pirkey, 139 Cal. 326; 73 Pac. 858. A judge must not shirk the painful duty imposed upon him, of being the trier of the question touching his own bias or other disqualification. Swan v. Talbot, 152 Cal. 142; 17 L. R. A. (N. S.) 1066; 94 Pac. 238. It is the duty of a judge, alleged to be biased, to grant a motion to call in an- other judge, should bias or other disquali- fication be shown; but it is equally his duty to deny the motion, and to sit in the case himself, if, in his judgment, the dis- qualifying cause alleged is not sufficiently established by the evidence. Swan v. Tal- bot, 152 Cal. 142; 17 L. R. A. (N. S.) 1066; 94 Pac. 238; Morehouse v. Morehouse, 136 Cal. 332; 68 Pac. 976; People v. Compton, 123 Cal. 403; 56 Pac. 44; Hoyt v. Zum- walt, 149 Cal. 381; 86 Pac. 600. The find- ing of the trial judge, on conflicting affidavits, is conclusive on appeal, even though the question in controversy be the disqualification of the judge himself. Estu- dillo v. Security Loan etc. Co., 158 Cal. 66; 109 Pac. 884. It is not sufficient that the party believes he cannot have a fair and impartial trial, but the facts must be set forth, which would lead a reasonable mind to believe that such was the case. People V. Findlay, 132 Cal. 301; 64 Pac. 472. An affidavit made upon information and belief is not sufficient: the facts must be stated, and the source of the information shown, upon which the belief is based. People v. Williams, 24 Cal. 31; Morehouse V. Morehouse, 136 Cal. 332; 68 Pac. 976. Facts must be shown (Dakan v. Superior Court, 2 Cal. App. 52; 82 Pac. 1129) ;_ the conclusions of the party are not sufficient. Hoyt v. Zumwalt, 149 Cal. 382; 86 Pac. 600. Erroneous rulings are not evidence of bias. People v. Williams, 24 Cal. 31. Test of bias. When the facts would justify a reasonable person in believing that he cannot have a fair and impartial trial before the judge about to try the cause, another judge should be called in. Johnston v. Dakan, 9 Cal. App. 524; 99 Pac. 729. Power of judge disqualified by bias. In case of disqualification, the judge has no power, except to arrange his calendar, regulate the order of business (People v. De la Guerra, 24 Cal. 73), and transfer the cause to another court (Livermore v. Brun- dage, 64 Cal. 299; 30 Pac. 818), or grant a motion for change of venue. People v. Mc- Garvev, 56 Cal. 327; Kern Vallev Water Co. V. MeCord, 79 Cal. 646; 11 Pac. 798. He may transfer the matter from his depart- ment to another department of the supe- rior court for hearing, instead of to the superior court of another county. Petition of Los Angeles Trust Co., 158 Cal. 603; 112 Pac. 56. A disqualified judge cannot preside at the arraignment of a defendant, nor hear his plea, nor take any step in the prosecution against him. People v. Ebey, 6 Cal. App. 769; 93 Pac. 379. A disqualification is no ground for change of place of trial in criminal eases. People v. McGarvey, 56 Cal. 327. The motion for a change of place of trial, in civil cases, on account of the disqualification of the judge, must be granted, where the judge is disqualified, and there is no other su- perior judge present to try the cause; but it is otherwise where another superior judge, who is holding court at the time, and who is qualified to try the cause, has been called for that purpose, and is ready and willing to try it. Upton v. Upton, 94 Cal. 26; 29 Pac. 411; Barnhart v. Fulkerth, 59 Cal. 130; Livermore v. Brundage, 64 Cal. 299; 30 Pac. 848; Finn v. SpagnoH, 67 Cal. 330; 7 Pac. 746. Where a qualified judge has been called in with the consent of both parties, a party is estopped to ob- ject, after trial has commenced, upon the ground that such judge was called in by the disqualified judge. Oakland v. Hart, 129 Cal. 98; 61 Pac. 779. The validity of the transfer to another county cannot be questioned in a collateral proceeding. Gage V. Downey, 79 Cal. 140; 21 Pac. 527, 855. Wliere the judge has jurisdiction to make an order or render a judgment, it is not a subject for collateral attack (Dore V. Dougherty, 72 Cal. 232; 1 Am. St. Rep.' 97 NO JUDICIAL OFFICER TO HAVE PARTNER PRACTICING LAW. §§ 171, 172 48; 13 Pac. 621; Johnston v. San Fran- cisco Sav. Union, 75 Cal. 134; 7 Am. St. Rep. 129; 16 Pac. 753; Gage v. Downey, 79 Cal. 140; 21 Pac. 527, 855; Hill v. City Cab etc. Co., 79 Cal. 188; 21 Pac. 728; Pehr son V. Hewitt, 79 Cal. 594; 21 Pac. 950); but a judgment bv a disqualified judge is void. Estate of White, 37 Cal. 190. Selection of judge. • The law selects the judge to try the action, where undisputed facts showing bias and prejudice are be- fore the court; a disqualified judge can neither try the case nor select his own judge to try it. Parrish v. Riverside Trust Co., 7 Cal. App. 95; 93 Pac. 685. A judge disqualified by relationship to an attorney for a defendant iu a criminal case has power to select a qualified judge to try the case. Decision by the supreme court in People V. Ebey, 6 Cal. App. 769, 774; 93 Pac. 379. The express prohibition of this section, that no disqualified judge shall act, applies in construing § 1054, post. Johnson v. German American Ins. Co., 150 Cal. 336; 88 Pac. 985. Power of judge acting in another county. A judge called to act for a disqualified judge is not required to deliberate upon the case, nor to prepare his findings and order for judgment, in the county in which the cause is pending. Estudillo v. Security Loan etc. Co., 158 Cal. 66; 109 Pac. 884. Validity of judgment by disqualified judge. See note 84 Am. Dec. 126. Power of disqualified judge to make formal orders or to perform ministerial acts. See note 5 Ann. Gas. 975. Efi'ect upon decision of tribunal of participa- tion by disqualified judge whose vote does not produce result. See note 13 Ann. Cas. 336. Disqualification of judge who Is resident or tax- payer in municipality which is party to proceed- ings before him. See note 6 Ann. (as. 40(;. Disqualification of judge interested in dece- dent's estate to act in estate matter. Sue note Ann. Cas. 1912C, 1165. Degree of relationship to party necessary to disqualify judge. See note 12 Ann. Cas. 516. Affinity or relationship to party as disqualifica- tion of judge. See note 79 Am. St. Kep. 199. Waiver of objection to disqualified judge. See notes 10 Ann. Cas. 969; Ann. Cas. 191J.V, 1072. Disqualification of judge by prior connection with case. See note 25 L. R. A. 114. Disqualification of judge for political bias or prejudice. See note 20 Ann. Cas. 424. Membership in association or body instigating or conducting disbarment proceedings as disqual- ifying judge to sit in case. See notes Ann. Cas. 1913A, 1229; 39 L. R. A. (N. S. ) 116. Prejudice against liquor traffic as constituting disqualification of judge to try case involving liquor laws. See note Ann. Cas. 1912A, 1203. Signing petition for local option election as disqualifying judge from action thereon. See note Ann. Cas. 1912C, 1092. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 343. The three causes stated in the text are the only ones which work a disqualification of a judicial officer. The exhibition by a judge of partisan feeling, or the unnecessary e.xpression of an opinion upon the justice or merits of a con- troversy, though exceedingly indecorous, improper, and reprehensible, as calculated to throw sus- picion upon the judgments of the court and bring administration of justice into contempt, are not, under the statute, sufficient to authorize a change of venue on the ground that the judge is disquali- fied from sitting. The law establishes a different rule for determining the qualification of judges from that applied to jurors. The reason for the distinction is obvious. The province of the jury is to determine from the evidence the issues of fact presented by the parties, and their decision is final in all cases where there is a conflict of testimony. The province of a judge is to decide such questions of law as may arise in the prog- ress of the trial. His decisions upon these points are not final, and if erroieous, the party has his remedy by appeal. McCauley v. Weller, 12 Cal. 500. § 171. Judges and county clerks, when prohibited from practicing law. 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 proceedings, before any department of the state or general govern- ment, or courts of the United States, during his continuance in office ; nor shall any justice of the peace practice law bsfore any justices' court in the county in which he resides. Enacted March 11, 1873 p. 343); and then read: Legislation § 171. 1 (based on Stats. 1863 "A judge cannot act as attorney or counsel in a court in which he is judge, or in an action or proceeding removed therefrom to another court for trial or review, or in an action or proceeding from which an appeal may lie to his own court." 3. Amended by Code Amdts. 1880, p. 42, to read: "No justice or judge of a court of record shall practice law in any court of this state dur- ing his continuance in office, nor shall any justice of the peace practice law before any justice's court in the county where he resides." 3. Amended by Stats. 1881. p. 78. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 343. § 172. No judicial officer to have partner practicing law. No justice, judge, or other elective judicial officer, or court commissioner, shall have a partner acting as attorney or counsel in any court of this state. Legislation § 172. 1. Enacted March 11, 1873, as § 173 (based on Stats. 1863, p. 343), and then read: "No judge or other elective judicial officer, or district court commissioner, shall have a partner acting as attorney or counsel in any court of this state." 1 Fair. — 7 3. Amended by Code Amdts. 1880, p. 42, and renumbered § 172. CODE COMlVnSSIONEKS' NOTE, p. 343. Stats. 1863, §§ 173-178 INCIDENTAIi POWERS AND DUTIES OF JUDICIAL OFFICERS. 98 § 173. [Renumbered and amended section.] Legislation § 173. Renumbered § 172 by Stats. Legislation § 172. 1880, p. 21, in amending Part I. See ante, CHAPTER IV. INCIDENTAL POWERS AND DUTIES OF JUDICIAL OFFICERS. § 176. Powers of justice or judge out of court. § 177. Powers of judicial officers as to conduct of proceedings. § 178. To punish for contempt. § 179. To take acknowledgments and afBdavits. § 176. Powers of justice or judge out of court. A justice or judge may- exercise out of court all the powers expressly conferred upon a justice or judge, as contradistinguished from the court. Power of judge. 1. At chambers. Ante, |§ 165, 166. 2. To administer oaths. Post, § 179. Legislation § 176. 1. Enacted March 11, 1873. 8. Amended by Code Amdts. 1880. p. 42, (1) adding the words "justice or" before the word "judge," in both places where printed, and (2) omitting the comma after "exercise" and after "court," in first line. Power of judge out of court. This sec- tion confers power to extend the time in which to prepare and serve a statement on motion for a new trial, even in a county other than that in which the trial took place. Matthews v. Superior Court, 68 Cal. 638; 10 Pae. 128, § 177. Powers of judicial officers as to conduct of proceedings. Every judicial officer shall have power: 1. To preserve and enforce order in his immediate presence, and in pro- ceedings before him, when he is engaged in the performance of official duty ; 2. To compel G?i3edience to his lawful orders as provided in this code ; 3. To compel the attendance of persons to testify in a proceeding before him, in the cases and manner provided in this code ; 4. To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties. Incidental powers of courts. Ante, § 128. Legislation 8 177. 1. Enacted March 11, 1872. 2. Amended by Code Amdts. 1880. p. 42, (1) in introductory paragraph, substituting "shall have" for "has"; (2) in subd. 1, striking out (a) "the" before "proceedings," and (b) "an" be- fore "official duty"; (3) in subd. 2, striking out a comma after "orders"; (4) in subd. 4, striking out a comma after "necessary." Power to compel witness to testify. This section gives a judge, in whose court an action is pending, power to order the at- tendance of a witness before him to make a deposition, and may command the wit- ness to answer proper interrogatories, and if his orders are disobeyed, he may punish the witness for contempt. Burns v. Supe- rior Court, 140 Cal. 1; 73 Pac. 597. Power to administer oaths. A justice of the peace has power to administer oaths, and to certify to a complaint char- ging a person with the commission of a crime. People v. Le Roy, 65 Cal. 613; 4 Pac. 649. § 178. To punish for contempt. For the effectual exercise of the powers conferred by the last section, a judicial officer may punish for contempt in the cases provided in this code. Contempt. 1. Generally. Post, § 1209. 2. In justices' courts. Post, § 906. Legislation § 178. 1. Enacted March 11, 1872. 2. Re-enacted by Code Amdts. 1880, p. 42, in amending Part I. Power to punish for contempt. A judi- cial officer has power, under this section, and it is his duty, to punish a witness for contempt for a refusal to answer pertinent questions upon the taking of his deposi- tion, and the supreme court will, by writ of mandate, compel such judicial officer to employ the process of contempt against the witness who so refuses. Crocker v. Conrey, 140 Cal. 213; 73 Pac. 1006. Power of judges to punish for contempt. See note 117 Am. St. Rep. 956. Power of magistrate to punish witness for con- tempt. See note 1 L. R. A. (N. S.) 1135. CODE COMMISSIONERS' NOTE. See post, §§ 1209 to 1222, inclusive. 99 TO TAKE ACKNOWLEDGMENTS AND AFFIDAVITS. §§ 179-182 § 179. To take acknowledgTiients and affidavits. 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 other inferior court within his city and county, city, or town, to take and certify: 1. The proof and acknowledgment of a conveyance of real property, or of any other written instrument; 2. The acknowledgment of satisfaction of a judgment of any court ; 3. An affidavit or deposition to be used in this state. certificate of acknowledgment is by the justice of the peace of another county, it must be accompanied by a certificate of the county clerk of that county, before it may be recorded. Middlecoff v. Hemstreet, 135 Cal. 173; 67 Pac. 768. Power of judge of an inferior court. Where a city recorder has been given the power of a justice of the peace, he may, like a justice of the peace, take and cer- tify acknowledgments and afiidavits. Prince v. Fresno, 88 Cal. 407; 26 Pac. 606. Subd. 1. Real property, acknowledgment of conveyance of. See Civ. Code, §§ 1180 et seq. Subd. 2. Satisfaction of judgment. Post, § 675. Subd. 3. Affidavit. Post, §§ 2009 et seq. Deposition. Post, §§ 2019 et seq. Legislation § 179. 1. Enacted March 11, 1873 ; based on Stats. 1863, p. 345. 2. Amended by Code Amdts. 1880, p. 42, substituting a new introductory sentence for the original, which read: "The justices of the supreme court, and the judges of the district and county courts, have power in any part of the state, and justices of the peace within their respective coun- ties, and police judges, and judges of municipal courts, within their respective cities or towns, to take and certify." Power of justice of the peace. A jus- tice of the peace may take acknowledg- ments, but his jurisdiction in such matters is limited to his own county, and where a What disqualification prevents officer from taking acknowledgment. See note 32 Am. Dec. 757. CODE COMMISSIONERS' NOTE. Stats. 1863. p. 345. CHAPTER V. MISCELLANEOUS PROVISIONS RESPECTING COURTS AND JUDICIAL OFFICERS. § 182. Subsequent applications for orders re- fused, when proliibited. § 183. Violations of preceding section. I 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. § 188. Disposition of funds paid to clerk or treasurer by order of court. § 182. Subsequent applications for orders refused, when prohibited. Tf an application for an order, made to a judge of a court in which the action or proceeding is pending, is refused in whole or in part, or is granted con- ditionally, 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 renew the same. Pac. 487. A dismissal of the motion as to one party and a denial as to another, is a final disposition, and a second motion will not be considered (Hellings v. Duvall, 131 Cal. 618; 63 Pac. 1017); but a dismissal without prejudice is not a denial of the motion. Wolff v. Canadian Pacific Ry. Co., 89 Cal. 332; 26 Pac. 825. Striking a mo- tion from the calendar is a denial. Lang V. Superior Court, 71 Cal. 491; 12 Pac. 306, 416. Granting leave to renew motions, where jurisdiction is not limited by stat- ute, is in the discretion of the judge; and this discretion will not be interfered with, except in cases of palpable abuse. Bowers V. Cherokee Bob, 46 Cal. 279; Hitchcock V. McElrath, 69 Cal. 634; 11 Pac. 487; Orders and motions generally. Post, §§ 1003 et seq. Orders, appealable. Post, § 939, subd. 3. Legislation § 182. 1. Enacted March 11, 1873; based on Stats. 1863, p. 345. 2. Amended by Code Amdts. 1880, p. 43, (1) changing "can" to "shall," after vrords "same order"; (2) omitting word "any" before "in- formality"; and (3) adding at end of section the clause beginning "or to motions." Application for order after denial. The court will not enforce the rule of the stat- ute, where it has acted prematurely or in- advertently in making an order (Odd Fel- lows' Sav. Bank v. Deuprey, 66 Cal. 168; 4 Pac. 1173); nor where there was an in- formality in the papers or proceedings, and the motion is denied upon that ground. Hitchcock V. McElrath, 69 Cal. 634; 11 §§ 183-187 MISCELLANEOUS PROVISIONS. 100 Johnston v. Brown, 115 Cal. 694; 47 Pac. from the files. People v. Center, 61 Cal. 686. Leave may be granted after an origi- 191. If an attorney has rendered services nal motion has been denied. Hitchcock v. to an executor in the defense of a contest McElrath, 69 Cal. 634; 11 Pac. 487; Ken- to a will, and his application for compen- ney v. Kelleher, 63 Cal. 442; Johnston v. sation is denied, but with the privilege of Brown, 115 Cal. 694; 47 Pac. 686. The doc- renewing the same, he may make a second trine of res adjudicata is not applicable to application, after judgment admitting the motions in pending actions. Johnston v. will to probate and the perfection of an Brown, 115 Cal. 694; 47 Pac. 686; Ford v. appeal from such judgment. Estate of Doyle, 44 Cal. 635; Bowers v. Cherokee Eiviere, 8 Cal. App. 773; 98 Pac. 46. A Bob, 46 Cal. 279. But a party seeking to second motion for a new trial cannot be renew his motion, after a denial thereof, made after a denial of the first: the rem- must show either that the denial was for edy is by appeal from the first order, some informality in the papers or proceed- Coombs v. Hibberd, 43 Cal. 452; Thompson ings, or that he has been granted permis- v. Lynch, 43 Cal. 482; People v. Center, 61 sion to renew the same. Victor Power etc. Cal. 191; Dorland v. Cunningham, 66 Cal. Co. V. Cole, 11 Cal. App. 497; 105 Pac. 758. 484; 6 Pac. 135; Goyhinech v. Goyhinech, Renewal of motion without leave. Where 80 Cal. 409, 410; 22 Pac. 175. a renewal of the motion is made without ^^.^^^ cOMlvnssiONEES' NOTE. Stats. 1863. leave or court, the papers may be stricken p_ 345. § 183. Violations of preceding section. A violation of the last section may be punished as a contempt ; and an order made contrary thereto may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending. Ez parte order, vacating or modifying. Post, and the words "or commissioner" added before § 937. "who made it." Legislation § 183. 1. Enacted March 11, 1873 ; CODE COMMISSIONERS' NOTE. Stats. 1863. based on Stats. 1863, p. 345. p. 345. 3. Amended by Code Amdts. 1880, p. 43, § 184. Proceedings not affected by vacancy in office. 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. Legislation § 184. 1. Enacted March 11, 1873 of the judges, or by the failure of a term thereof." (based on Stats. 1863, p. 345), and then read: 2. Amended by Code Amdts. 1880, p. 43. "No proceeding in any court of justice, in an rnTfP r'mvnvrT«5C!TnTJT'T?P rrnvrvrrsmnN-PT?*;' MHTP c!t,tc 1 afi^ in the counties of San Luis Obispo, Santa Bar- CODE COMMISSIONERS NOTE. Stats. 1863, bara, Los Angeles, and San Diego, must be in the P- '**°- English language, and in the excepted counties §186. Abbreviations and figures. Such abbreviations as are in common use may be used, and numbers may be expressed by figures or numerals in the customary manner. Legislation § 188. 1. Enacted March 11, 1873; mathematical signs, and similar signs used based on Stats 1863, p 344. ^„„„ ., by merchants; this rule simply applies to 2. Re-enacted by Code Amdts. ISSO, p. 43, . -^ . . ' . i i if in amending Part L judicial proceedings a rule elsewhere uni- TT ^ versal. Estate of Lakemeyer, 135 Cal. 28; Abbreviations in common use. Under g^ ^^ g^ ^ 9g gg p^^^ ^g^ j^^ .^ ^; the head "abbreviations' are to be m- p^^^^ 155 ^^1. 797; 103 Pac. 312. eluded all conventional expressions or arbi- trary signs that have passed into common CODE COMMISSIONERS' NOTE. Stats. 1863. use, such, for example, as punctuation- P- ^'^ • marks, the Arabic numerals and other § 187. Means to carry jurisdiction into effect. When jurisdiction is. by the constitution or this code, or by any other statute, conferred on a court * 101 MEANS TO CARRY JURISDICTION INTO EFFECT. §187 or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable pro- cess or mode of proceeding may be adopted which may appear most con- formable to the spirit of this code. (Thompson v. White, 63 Cal. 505; Gray v. Palmer, 9 Cal. 616; Packard v. Bird, 40 Cal. 378; Harris v. San Francisco Sugar Eefining Co., 41 Cal. 393; McFadden v. McFadden, 44 Cal. 306; Hinds v. Gage, 56 Cal. 486); and to order the withdrawal of an execution after return, for further levy. Weldon v. Rogers, 157 Cal. 410; 108 Pac. 266. Under this section, courts may inquire into frauds, mistakes, and cognate matters. Cerini v. De Long, 7 Cal. App. 398; 94 Pac. 582. Where a foreign court has jurisdic- tion to compel the holding of a stockhold- ers' meeting, it has jurisdiction to make its judgment in mandamus effective by ap- pointing a commissioner to give notice of the time and place of such meeting (Poto- mac Oil Co. V. Dye, 14 Cal. App. 674; 113 Pac. 126, 130); but this section does not authorize a proceeding to compel one of many stockholders in a corporation, made defendants to a creditor's bill to reach their unpaid subscriptions to its stock, to testify to or discover the whereabouts of other defendants, to enable the plaintiff to serve them with summons. Union Collec- tion Co. V. Superior Court, 149 Cal. 790; 87 Pac. 1035. There is nothing in the Juvenile Court Law to preclude the dis- trict attorney from making the technical accusation against the defendant in the form of an information; that law contem- plates an information without any prelim- inary examination, but such an examina- tion, prior to an information, may be treated as surplusage, and this section, therefore, has no material application to the question. Edington v. Superior Court, IS Cal. App. 739; 124 Pac. 450; 128 Pac. 338. If any judicia.1 wrong has been com- mitted in the conduct of an election, the superior court may, in the exercise of its equity powers, remedy it. Cerini v. De Long, 7 Cal. App. 398; 94 Pac. 582. Process and procedure. The court has power, under this section, to adopt a mode of proceeding in setting aside a homestead (Mawson v. Mawson, 50 Cal. 539; Estate of McCauley, 50 Cal. 544; Kearney v. Kearney, 72 Cal. 591; 15 Pac. 769; Brown V. Starr, 75 Cal. 163; 16 Pac. 760; Estate of Burdick, 76 Cal. 639; 18 Pac. 805; Es- tate of Walkerly, 81 Cal. 579; 22 Pac. 888; Somers v. Somers, 81 Cal. 608; 22 Pac. 967), and dealing with the same, cutting down and limiting it (Estate of Burdick, 76 Cal. 639; IS Pac. 805); requiring an appraiser to divide the homestead (Brown V. Starr, 75 Cal. 163; 16 Pac. 760); authen- ticating papers (Somers v. Somers, 81 Cal. 608; 22 Pac. 967); enforcing the constitu- tional rights of the defendant to have wit- Legislation § 187. 1, Enacted March 11, 1873; based on New York code. 3. Amended by Code Amdts. 1880, p. 43, (1) adding, in first line, the words "the constitution or," and (2) changing "the" to "this," before "jurisdiction." The means necessary. This section is merely declaratory of the common law (Golden Gate Cons. etc. Mining Co. v. Su- perior Court, 65 Cal. 187; 3 Pac. 628); but, to make it available, there must be some law conferring jurisdiction upon the court (Tulare County v. Kings County, 117 Cal. 195; 49 Pac. 8), as it does not confer juris- diction: it merely operates to enable the court to exercise a jurisdiction otherwise conferred. Union Collection Co. v. Supe- rior Court, 149 Cal. 790; 87 Pac. 1035. The provision is conformable to the spirit of the code, and is limited to those cases where no course of procedure is pointed out by the code or some statute. Gardner V. Superior Court, 19 Cal. App. 548; 126 Pac. 501. The power should not be exer- cised when the existing law, by a reason- able construction, provides the process or mode of proceeding. McKendrick v. West- ern Zinc Min. Co., 165 Cal. 30; 130 Pac. 865. Where neither the legislature nor the rules of court prescribe any means or method for enforcing a right, the court may adopt any appropriate and approved mode of procedure that may have been em- ployed by an aggrieved party. People v. Robinson, 17 Cal. App. 273; 119 Pac. 527. The superior court has power to compel a discovery in all cases, where, under the established rules of chancery practice ex- isting at the time of the adoption of the constitution, a party would have been en- titled to such relief. Union Collection Co. V. Superior Court, 149 Cal. 790; 87 Pac. 3 035. It has power to determine that the amount of legal taxes due was just and legal, and to require the payment thereof as a condition to the granting of an in- junction against the execution of a tax deed (San Diego Realty Co. v. Cornell, 150 Cal. 637; 89 Pac. 603); to take evidence to determine the degree of a crime (People V. Chew Lan Ong, 141 Cal. 550; 99 Am. St. Rep. 88; 75 Pac. 186); to appoint a commissioner to sell land under a decree of foreclosure (Crane v. Cummin 2;s, 137 Cal. 201; 69 Pac. 984; Kreling v. Kreling, 118 Cal. 413; 50 Pac. 546); to appoint a receiver to make a conveyance of property under decree of court (Scadden Flat Gold Mining Co. v. Scadden, 121 Cal. 33; 53 Pac. 440); to issue a writ of assistance in a judgment in ejectment (Kirseh v. Kirsch, 113 Cal. 56; 45 Pac. 164); to make interlocutory decrees and orders in equity § 188 MISCELLANEOUS PROVISIONS. 102 nesses examined in open court (Willard Superior Court, 65 Cal. 187; 3 Pac. 628); V. Superior Court, 82 Cal. 256; 22 Pac. enforcing a stipulation of the parties 1120); levying taxes for road purposes (Grady v. Porter, 53 Cal. 680); reviewing (Comstock V. Yolo County, 71 Cal. 599; 12 the ruling of a justice's eourt on appeal Pac. 728; San Luis Obispo County v. (Maxson v. Superior Court, 12-4 Cal. 468- White, 91 Cal. 432; 24 Pac. 864; 27 Pac. 57 Pac. 379); and making up, auditing, 756) ; adjudicating the insolvency of a and settling the account of a guardian be- banking corporation (People v. Superior yond the jurisdiction of the court. Trump- Court, 100 Cal. 105; 34 Pac. 492); setting ler v. Cotton, 109 Cal. 250, 41 Pac. 1033; aside and declaring fraudulent proceedings Graff v. Mesmer, 52 Cal. 636. in insolvency (Estudillo v. Meverstein 72 Pol Q17. IP T3„\, QRQ\ o„fi, ■i^- '• CODE COMMISSIONERS' NOTE. This sec- Cal. 31/; 13 Pac. 869); authorizing service tion is adopted from the Xew York code. The or an order, where a party conceals him- italicized words ["necessary" and "or the stat- self (Golden Gate Cons. etc. Mining Co. v, ute"] have been added by this commission. § 188. Disposition of funds paid to clerk or treasurer by order of court. When any money is deposited with the clerk of any superior court pur- suant to any action or proceeding therein or pursuant to any order, decree or judgment of the court, or when any money is to be paid to the treasurer pursuant to any provision of this code, such money shall be forthwith deposited with such treasurer and a duplicate receipt of the treasurer therefor shall be filed with the auditor. The certificate of the auditor that such duplicate receipt has been so filed shall be necessary before the clerk or party required to deposit such money shall be entitled to a discharge of the obligation imposed upon him to make such deposit. When any money so deposited is to be withdrawn or paid out, the order directing such pay- ment or withdrawal shall require the auditor to draw his warrant therefor and the treasurer to pay the same. Legislation § 188. Added by Stats. 1915, vening terms," was added by Code Amdts. 1873— p. 942. 74, p. 285, and repealed by Code Amdts. 1880, Tho original § 188, entitled "Trials and inter- p. 21, in amending Part I. 103 DEFINITION OP JURY. §§ 190-192 TITLE III. PERSONS SPECIALLY INVESTED WITH POWERS OF A JUDICIAL NATURE. Chapter I. II. Jurors. Articles I-XII. §§ 190-254. Court Commissioners. §§ 258, 259. CHAPTER L JUROES. Article I. Jurors in General. §§ 190-195. II. Qualifications and Exemptions of Jurors. §§ 198-202. III. Of Selecting and Returning Jurors for Courts of Record. §§ 204-211. IV. Of Drawing Jurors for Courts of Record. §§ 214-221. V. Of Summoning Jurors for Courts of Record. §§ 225-228. VI. Of Summoning Jurors for Courts not of Record. §§230-232. Vn. Of Summoning Juries of Inquest. § 235. VIII. Obedience to Summons, how Enforced. § 238. IX. Of Impaneling Grand Juries. §§241-243. X. Of Impaneling Trial Juries in Courts of Record. §§ 246-248. XL Of Impaneling Trial Juries in Courts not of Record. §§250,251. XII. Of Impaneling Juries of Inquest. § 254. ARTICLE L JURORS IN GENERAL. 8 190. 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. Jury defined. A jury is a body of men temporarily selected from the citizens of a particular district, and invested with power to present or indict a person for a public offense, or to try a question of fact. Jurors. 3. Impaneling. Post, §§ 241-254. 1. Qualifications and exemptions. Post, -r ^ , ..• »,«^ - ^ , ,, -„ ~ §§198-202 Legislation § 190. 1. Enacted March 11, 1872. 2. Selecting and summoning. Post, §§ 204, ^' Ke-enacted by Code Amdts. 1880, p. 44, in 233 amending Part I. § 191. Different kinds of juries. Juries are of three kinds: 1. Grand juries; 2. Trial juries ; 3. Juries of inquest. Legislation § 191. 1. Enacted March 11, 1872. 2. Re-enacted by Code Amdts. 1880, p. 44, in amending Part T. § 192. Grand jury defined. 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, before a court of competent jurisdiction, and sworn to inquire of public offense committed or triable within the county, or city and county. Grand Jury. 1. Impaneling. Post, §§ 241-243. 2. How often drawn. Const., art. i, 5 8. Legislation § 192. 1. Enacted March 11, 1872 (based on Stats. 1863, p. 630), and then read: "A grand jury is a body of men, not less than thirteen nor more than fifteen in number, re- turned at stated periods from citizens of the county, before a court of competent jurisdiction, and sworn to inquire of public offenses committed or triable within the county." 2. Amended by Code Amdts. 1875-76, p. 86, to read as at present, except that (1) it did not contain the words "or city and county" in either place; (2) the words "citizens of a county" were printed "citizens of the county"; and (3) the word "offense" was printed "offenses." 3. Amended by Code Amdts. 1880, p. 44. Jurisdiction of court. The jurisdiction of the superior court to impanel a grand jury is drawn from the law, and not from §§ 193-198 JURORS. 104 ever, unless both the sheriff and the cor- oner are disqualified. Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341. See any order of the court. Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341. Eeturn of grand jury. It is competent for the court to summon a special venire to complete the panel, instead of drawing the requisite number from the grand jury box. Levy v. Wilson, 69 Cal. 105; 10 Pac. 272. The court has no power to appoint an elisor to summon the grand jury, how- § 193. Trial jury deSned. 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. Number necessary to form grand jury. notp 27 L. R. A. 846. Number of grand jurors necessary to constitute quorum. See note Ann. Cas. 1912C, 30. CODE COMI/nSSIONEES' NOTE, p. 630. Stats. 1863, Trial by jury. Post, 5 § 600-619. Verdict. Three quarters of jury can find. Const., art. i, § 7. See also post, § 618. Legislation § 193. 1. Enacted March 11, 1873. 2. Amended by Code Amdts. 1880, p. 44, striking oat "unanimous" before "verdict." § 194. Number of a trial jury. A trial jury shall consist of twelve men ; provided, that in civil actions and cases of misdemeanor, 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., art. i, § 7. Legislation § 194. 1. Enacted March 11, 1872, and then read: "A trial jury consists of twelve men, unless the parties to the action or proceed- ing agree upon a less number." 2. Amended by Code Amdts. 1880, p. 44. CODE COIVIMISSIONERS' NOTE. A party fail- ing to appear at the trial, it operated as a con- sent on his part that the issue should be tried by the court without a jury. The other party could have made thig consent mutual by submitting the case to the court; but if such a course is not taken, and the party appearing calls for a jury, he is bound to take the number required by law. Twelve is the number, and a less number will not constitute a legal jury without the consent of the adverse party. Such consent must be ex- press, and entered at the time in the minutes of the court: it cannot be inferred from the mere absence of the adverse party. Gillespie v. Ben- son, 18 Cal. 411. § 195. Jury of inquest defined. 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. Legislation § 195. 1. Enacted Marchll, 1873. 2. Re-enacted by Code Amdts. 1S80. p. 44. ARTICLE II. QUALIFICATIONS AND EXEMPTIONS OF JUROES. § 198. Who competent to act as juror. § 199. Who not competent to act as juror. § 200. Who exempt from jury duty. § 201. § 202. Who may be excused. Affidavit of claim to exemption. § 198. Who competent to act as juror. A person is competent to act as juror if he be : 1. A citizen of the United States of the age of twenty-one years who shall have been a resident of the state and of the county or city and county for one year immediately before being selected and returned ; 2. In possession of his natural faculties and of ordinary intelligence and not decrepit; 3. Possessed of sufficient knowledge of the English language. See Const., art. ii, § 4; Residence, generally. Pol. Code, § 52. Legislation § 198. 1. Enacted March 11, 1873 (based on Stats. 1863, p. 630; Stats. 1863-64, pp. 462, 524), and then read: "A person is com- petent to act as a juror if he be: 1. A citizen of the United States, an elector of the county, and a resident of the township at least three months before being selected and returned; 2. lu pos- session of his natural faculties and not decrepit; 3. Possessed of sufficient knowledge of the lan- guage in which the proceedings of the courts are had; 4. Assessed on the last assessment-roll of his county, on property belonging to him." 2. Amended by Code Amdts. 1875-76, p. 89, inserting, in subd. 1. after the word "county," the words, in parentheses, "(whether his name be enrolled on the great register of the county, or not)." 3. Amended by Code Amdts. 1880, p. 45, the textual differences from the present section being noted infra, par. 5. 4. Amendment by Stats. 1901, p. 121; un- constitutional. See note ante, § 5. 5. Amended by Stats. 1915. p. 826, (1) in subd. 1, substituting "a resident of the state and of the county or city and county for one year immediately before being selected and re- 105 COMPETENCY OF JUROR. §199 turned," for "a resident of the state one year, and of the county, or city and county, ninety days before being selected and returned"; (2) striking out subd. 4, which read, "4. Assessed on the last assessment-roll of the county, or city and county, on property belonging to him." Competency. This and the next section provide the qualifications of all jurors, grand and trial alike. People v. Leonard, 106 Cal. 302, 317; 39 Pac. 617. Lack of qualification affects individual jurors only; objections on that ground cannot be urged to a panel. People v. Young, 108 Cal. 8; 41 Pac. 281; People v. Searcey, 121 Cal. 1; 41 L. E. A. 157; 53 Pac. 359. In impanel- ing a jury, it is the duty of the parties to an action, whether civil or criminal, to inquire first as to the qualifications pre- scribed by the first and fourth subdivisions of this section; otherwise there is a waiver of the right to challenge for a want of such qualification. People v. Sampo, 17 Cal. App. 135; 118 Pac. 957. It is the function of the trial court to determine the true state of mind of each member of the panel, touching his qualifications to act. People V. Loper, 159 Cal. 6; Ann. Cas. 1912B, 1193; 112 Pac. 720. Citizenship. Aliens are expressly pro- hibited from serving in the capacity of jurors. People v. Chung Lit, 17 Cal. 320; People v. Chin Mook Sow, 51 Cal. 597. Residence. The juror must have been a resident of the county for ninety days be- fore being selected and returned (People V. Cochran, 61 Cal. 548) ; and the statute formerly required that he should be an elector of the county in which he was re- turned. Sampson v. Schaffer, 3 Cal. 107. Natural capacity. It must be presumed that the hearing of a juror is normal, where misconduct of the juror in listening to the reading of a newspaper article is charged. People v. Wong Loung, 159 Cal. 520; 114 Pac. 829. An objection to the natural capacity of a juror, though not made upon his voir dire examination, is not waived: he may be excused whenever the want of natural capacity appears. People V. Sampo, 17 Cal. App. 135; 118 Pac. 957. Knowledge of English. The juror's knowledge of the English language must be suflScient to enable him to understand the proceedings. People v. Arceo, 32 Cal. 40. Property qualification. The juror must have been assessed on property belonging to him: it is not sufficient that he is an heir of a deceased person, who had owned property in the county (People v. Warner, 147 Cal. 546; 82 Pac. 196); but where prop- erty is assessed to a partnership, of which the juror is a member, it is sufficient. Peo- ple V. Owens, 123 Cal. 482; 56 Pac. 251. A person not assessed in the last assessment- roll is not a competent juror. People v. Warner, 147 Cal. 546; 82 Pac. 196; Kitts v, Superior Court, 5 Cal. App. 462; 90 Pac. 977. Lack of property qualification may be waived, and it is waived where the juror is accepted and sworn without objec- tion. People V. Thompson, 34 Cal. 671; People V. Mortier, 58 Cal. 262; People v. Sanford, 43 Cal. 29. Mistaken identity. A person not sum- moned is not selected and returned as re- quired by law, although he bears the same name as a venireman whose name is in the box: he is not a qualified juror, and may be challenged; but it is too late to raise the question after verdict. People v. Duncan, 8 Cal. App. 186, 199; 96 Pac. 414. Juror as "freeholder." See note Ann. Cas. 1913D, 331. Constitutionality of statute requiring juroiB to be taxpayers. See note 32 L. K. A. (N. S.) 414. Waiver of property qualification of juror. See note 39 L. R. A. (N. S.) 967. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 630; Stats. 1864, p. 462. Sampson v. Schaflfer, 3 Cal. 107; People v. Peralta, 4 Cal. 175; People V. Stonecifer, 6 Cal. 405 ; People v. Chung Lit, 17 Cal. 320. Subd. 1. "An elector of the county," etc. Sampson v. Schaffer, 3 Cal. 107. "And a resi- dent." Residence depends upon intention, as well as fact, and mere inhabitancy for a short period, against the intention of acquiring a domi- cile, would not make a resident within the mean- ing of the law. People v. Peralta, 4 Cal. 175. A citizen of the state who has resided only fourteen days in a county, and then was absent several months from the state, with the intention of re- turning to that county as his home, and does re- turn, and has resided fourteen days in the county since his return, is qualified to act as a juror, so far as residence is concerned. If he had resided but one day, with the intention, in good faith, of making the county his home, and then left, with the intention of returning (animus revertendi), and actually did return, his residence would have dated from the day of his first settlement or arrival in the county, and not from the date of his return. People v. Stonecifer, 6 Cal. 410. On a motion for a new trial, plaintiff's attorney (the client being absent) made atTidavit that since the trial he had discovered that M., one of the jurors, was incompetent, because a resident of the state only three months. M. also made affidavit that he was a resident of the state for that time only. Held: that M. was a competent juror. Thomp- son V. Paige, 16 Cal. 78. In a criminal case, the objection that one of the jurors was an alien, can- not be taken for the first time upon the motion for a new trial, not even if the defendant was not aware of the juror's alienage at the time of the verdict. The defendant might have examined the juror on this subject and exercised the right of challenge before the juror was sworn. People V. Chung Lit, 17 Cal. 322. See also People v. Stonecifer, 6 Cal. 405. Subd. 2. The words "and not decrepit" are added to the law as it existed prior to the pas- sage of this code. Want of hearing, or of sight, suffering from physical disease, which prevents him from giving attention to the proceedings of the court, are enough to render a juror disquali- fied. Montague v. Commonwealth, 10 Gratt. (Va.) 767: People v. Arceo, 32 Cal. 45. Subd. 3. See the case of People v. Arceo, 32 Cal. 40. Subd. 4. A person otherwise qualified is not a competent juror, unless he has been assessed on the last assessment-roll of his county, on prop- erty belonging to him. People v. Thompson, 34 Cal. 672. § 199. Who not competent to act as juror. A person is not competent to act as a juror: 200 JUKORS. 106 1. Who does not possess the qualifications prescribed hy the preceding section ; 2. Who has been convicted of malfeasance in office or any felony or other high crime ; or 3. Who has been discharged as a juror by any court of record in this state within a year, as provided in section two hundred of this code, or who has been drawn as a grand juror in any such court and served as such within a year and been discharged. 4. A person who is serving as a grand juror in any court of record in this state is not competent to act as a trial juror in any such court. And a person who is serving as a trial juror in any court of this state is not competent to act as a grand juror in any such court. Legislation § 199. 1. Enacted March 11, 1873 who has been discharged within a year, is (based on Stats. 1863, p. 630), and then read: j^^^^ rendered incompetent to sit upon a "A person is not competent to act as a juror: „_„„j -;,,^,r /a,,, i;„„t; ^-e T>,^^f t crn r^^^ 1. Who does not possess the qualifications pre- f^^^^^J^^^ (Application of Luef, 150 Cal. scribed by the preceding section; 2. Who has €bo; 89 Tac. 605; People V. Quijada, lo4 been convicted of a felony or misdemeanor, in- Cal. 243; 97 Pac. 689; People v. Carson, "ti^inTendedTy" c'ode Amdts. 1880, p. 45. If Cal. 164;_ 99 Pac._ 970) ; and the valid- changing subd. 2 to read as now printed, except ity 01 an indictment IS not aftected by the that, then ending the section, it did not have, at fact that a member of the Hiand jury was end, the word "or." ■ disqualified because he had served and 3. Amendment by Stats. 1901, p. 122, un- , ^ -,. , i • • ,. constitutional. See note ante, § 5. . been discharged as a juror m the superior 4. Amended by Stats. 1905, p. 70, adding court within a vear. Application of Euef, BUbds 3 and 4, and the last paragraph ; subd 3 -^^q q^j_ qq- gg ^^^ gQg j^-^^g ^^ g . then having the words section two hundred and . ^ j.rriiA /icoaat) nnn three," a manifest error, corrected iu 1909. rior Court, 5 Cal. App. 462; 90 Pac. 977. Quaere as to the "hinging" of subd. 4 on the in- Competency of jurors who have previously troductory paragrapn. ., „„„ „.c: phnnHtiP- served in cause involving same or similar facts. 5. Amended by btats. 190», c. o4t>, cnanging „„.„„ a \„„ n„o oki;. rq t t? a a7i the section number in subd. 3; the act to take See notes 4 Ann. Cas. 965, 68 L. R. A. 871. effect June 1, 1909. CODE COIOIISSIONERS' NOTE. Stats. 1863, Service within a year. A trial juror, p- 630. § 200. Who exempt from jury duty. 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 ; 2. A person holding a county, city and county, city, town or township office; 3. An attorney at law, or the clerk, secretary or stenographer of an at- torney 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 almshouse, hospital, asylum, or other charitable institution ; 8. Engaged in the performance of duty as officer 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, or a superintendent, employee, or operator of a telegraph or telephone company doing a general telegraph or telephone 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 paid fire department of any city and county, city, town, or village in this state, or an exempt member of a duly authorized fire company; 107 WHEN JUROR MAY BE EXCUSED. §201 12. A superintendent, engineer, fireman, brakenian, motorman, or conduc- tor 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 or a person drawn or summoned as a juror in any such court who has been discharged as a juror within a year as hereinafter provided ; provided, however, that in counties having less than five thousand population the exemption provided by this subdivision shall not apply. Exemption, how claimed. Post, § 201. Subd. 11. Exempt fireman. Pol. Code, §§ 3337- 3339. Members of national guard. See Pol. Code, § 2098. Legislation § 200. 1. Enacted March 11, 1873 (based on Stats. 1853, p. 59; Stats. 1862, p. 375; Stats. 1863, p. 630; Stats. 1865-66, p. 30), and then read: "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 the state of California; 2. A person holding a county office; 3. An attorney and counselor at law; 4. A minister of the gospel or a priest of any de- nomination; 5. A teacher in a college, academy, or school; 6. A practicing physician; 7. An offi- cer, keeper, or attendant of an almshouse, hos- pital, asylum, or other charitable institution; 8. Engaged in the performance of duty as officer or attendant of a county jail or the state prison; 9. Employed on board of a vessel navigating the waters of this state; 10. An express agent, mail- carrier, telegraph-operator, or keeper of a public ferry or toll-gate; 11. An active member of the fire department of any city, town, or village in this state, or an exempt member by reason of five years active service; 12. A superintendent, engineer, or conductor on a railroad." 3. Amended by Code Amdts. 1873-74, p. 285, (1) in subd. 3, changing "An attorney" to "A practicing attorney"; (2) adding, at the end of subd. 4, the words "following his profession" ; (3) adding, at the end of subd. 6, the words "or dentist"; (4) in subd. 10, substituting for "tele- graph-operator" the words "superintendent, em- ployee, or operator of a telegraph line doing a general telegraph business in this state" ; and (5) adding subd. 13, "An editor or local reporter of a newspaper." 3. Amended by Code Amdts. 1S75-76, p. 86, (1) changing subd. 3 to "An attorney at law"; (2) striking out the words "or dentist" from end of subd. 6; (3) changing subd. 11 to read, "An active member of a fire department of an> city, town, or village in the state, or an exempt mem- ber of a duly organized fire company, who has become exempt from jury duty before the passage of this act"; (4) changing subd. 13 to read, "A person who served as a juror in any court of record in this state, for a term thereof which has expired within a year; but this exemption shall not extend to a person who is summoned as a juror for the trial of a particular case." 4. Amended by Code Amdts. 1880, p. 45, (1) at end of subd. 1, changing "the state of Califor- nia to ''this state"; (2) changing subd. 2, after county, to read, "city and county, or township office'; (3) in subd. 5, adding "university" be- fore "college" ; (4) adding, after "physician," in subd. 6, "or druggist, actually engaged in the business of dispensing medicines"; (5) changing, after "attendant of," in subd. 8, to read, "the state prison, or of a county jail, or the state prison"; (6) changing subd. 11 to read, "An active member of the national guard of Cali- fornia, or an active member of a fire department of any city and county, city, town, or village in this state, or an exempt member of a duly organ- ized fire company who had become exempt from jury duty before the passage of this act" ; and (7) changing subd. 13 to read: "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 exemption shall not ex- tend to a person who is summoned as a juror for the trial of a particular case." 5. Amended by Stats. 1897, p. 185, striking from end of subd. 11, "who had become exempt from jury duty before the passage of this act." 6. Amended by Stats. 1905, p. 71, the text then being the same as at present (1915), ex- cept for the subsequent changes noted. 7. Amended by Stats. 1907, p. 885, (1) in subd. 11, substituting "authorized" for "organ- ized," before "fire company"; (2) in subd.- 13, adding the proviso. 8. Amended by Statsi. 1915, p. 1080, adding "fireman" in subd. 12. Exemption. Exemption is a privilege, and not a ground of challenge. People v. Owens, 123 Cal. 482; 56 Pae. 251. Constitutionality of laws exempting certain classes of persons. See note 5 Ann. Cas. 783. CODE COIMMISSIONEES' NOTE. Stats. 1863, p. 630; Stats. 1853, p. 59; Stats. 1866, p. 30; Stats. 1862, p. 362. Subdivision 12, is new. § 201. Who may be excused. A juror shall not be excused by a court for slight or trivial cause, or for hardship or inconvenience to his business, but only when material injury or destruction to his property, or of property intrusted to him, is threatened, or when his own health, or the sickness or death of a member of his family, requires his absence. Legislation § 201. 1. Enacted March 11, 1873; based on Stats. 1863, p. 630. 3. Amended by Code Amdts. 1880, p. 45, (1) changing the first words of the section from "A juror cannot be excused by the court"; (2) omitting a comma after "hardship"; and (3) changing "or of property intrusted" from "or that of the public intrusted." Court may excuse. The court may, of its own motion, for any good reason, exeupe a qualified juror from sitting on the panel in a criminal case. People v. Arceo, 32 Cal. 40. Rejecting or excusing juror without challenge. See note 1 Am. St. Rep. 519. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 630. It has been held that the court may, for a good reason, on its own motion, excuse or set aside a juror who is free from any statutory disability, and possesses the legal qualifications of a juror. Montague v. Commonwealth, 10 Gratt. (Va.) 767. And "even if a juror has been set aside by the court for an insufficient cause, it is not a matter of error, if the trial has been bv a jury duly sworn and impaneled and above all exceptions. Neither the prisoner nor the gov- erament in such a case has suffered injury." United States v. Cornell, 2 Mason, 91 ; Fed. Cas. §§202,204 JURORS. 108 No. 14868; Tatum v. Young, 1 Port. (Ala.) 298; and without a reasonable ground upon which to Commonwealth v. Hayden, 4 Gray, 19. Where a base its actions, perhaps it might be error. See court willfully and arbitrarily rejects a juror not People v. Arceo, 32 Cal. 40. disqualified under the provisions of the statute, § 202. Affidavit of claim to exemption. If a person, exempt from liability to act as a juror as provided in section tAvo hundred, be summoned as a juror, he may make and transmit his affidavit to the clerk of the court for which 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 name of such person is called, and if sufficient in substance, shall be received as an excuse for non-attendance in person. The affidavit shall then be filed by the clerk. Legislation § 202. 1. Added by Code A.mdts. (1) changing "If a" from "If any," in first line; 1873-74, p. 286. (2) changing "where" from "when," before "tha 2. Amended by Code Amdts. 1880, p. 46, name." ARTICLE III. OF SELECTING AND EETURNING JURORS FOR COURTS OF RECORD. § 204. Jury-lists, by whom and when to be made. § 208. Certified list to be filed with clerk of § 205. Selection and listing of persons suitable superior court. and competent to serve as jurors. § 209. Duty of clerk. Jury-boxes. §206. Lists to contain how many names. §210. Regular jurors to serve one year. I 207. Person who served as jllror durLng preced- §211. Jurors to be drawn from boxes. ing year not to be selected. [Repealed.] § 204. Jury-lists, by whom and when to be made. In the month of Jan- uary in each year it shall be the duty of the superior court in each of the counties of this state to make an order designating 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 transaction of the business of the court, and the trial of causes therein, during the ensuing year; and immediately 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 superior court during the ensuing year, or until new lists of jurors shall be provided, and said selections and listings shall be made of persons suitable 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 desig- nating the estimated number of trial jurors shall be made, the board of supervisors shall select, as provided in sections two hundred and five and two hundred and six of this code, a list of persons to serve as trial jurors in the superior court of said county during the ensuing year, or until a new list of jurors shall be provided. In counties, and cities and counties having a population of one hundred thousand inhabitants or over, such selection shall be made by a majority of the judges of the superior courts. liegislation § 204. 1. Enacted March 11, 1872, place designated by the county judge, and make and then read: "The board of suprrvisors of each a list of persons to serve as jurors in the courts county must, at their first regular meeting in of record, held in said city and county, for the each year, or at any other meeting if neglected at ensuing year. And the board of supervisors of the first, make a list of persons to serve as jurors each of the other counties of the state must, at in courts of record for the ensuing year." its first regular meeting in each year, or at any 2. Amended by Code Amdts. 1873-74. p. 286, other mpcting, if neglected at the first, make a to read: "The district judges of the several dis- list of persons to serve as jurors in the courts tricts within or embracing part of the city and of record in their respective counties until a new county of San Francisco, and the county judge list is provided." of the county, and the judge of the municipal 3. Amended by Code Amdts. 1875-76, p. 86, criminal court of San Francisco, or a majority of to read: "The district judges of the several such judges, must meet in San Francisco in the judicial districts within or embracing part of the month of December of each year, at the time and city and county of San Francisco, and the county 109 WHO COMPETENT TO SERVE AS JURORS. 205 judge, probate judge, and judge of the municipal criminal court of said city and county, or a majority of such judges, must meet in said city and county in the month of December of each year, at the time and place designated by the county judge, and select a list of persons to serv^e as grand jurors in the county court, and another list of persons to serve as trial jurors in the courts of record held in said city and county for the ensuing year. And the board of supervisors of each of the other counties of the state must, at its first regular meeting in each year, or at any other meeting, if neglected at the first, make a list of persons to serve as jurors in the courts of record, in their respective counties, until a new list is provided." 4. Amended by Code Amdts. 1880, p. 46, to read: "Within thirty days after the passage of this act the superior court in each of the coun- ties of this state shall make an order designating the number of grand jurors, and also the number of trial jurors that, in the opinion of said court, will be required for the transaction of the busi- ness of said court during the year ending on the first day of January, eighteen hundred and eighty- one ; and thereafter, in the month of January in each year, it shall be the duty of said court to make an order designating 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 transaction of the business of the court, and the court and the trial of causes therein, during the ensuing year. And immedi- ately after said order shall be made, the board of supervisors shall select, as provided in the next section, a list of persons to serve as grand jurors and trial jurors in the superior court of said county during the ensuing year, or until a new list of jurors shall be provided. In cities and counties having over one hundred thousand inhabitants such selection shall be made by the judges of the superior court." 5. Amended by Stats. 1881, p. 69, to read: "In the month of January in each year, it shall be the duty of the superior court in each of tha counties of this state to make an order designat- ing 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 trans- action of the business of the court, and the trial of causes therein, during the ensuing year; and immediately after said order shall be made, the board of supervisors shall select, as provided in the next section, a list of persons to serve as grand jurors, and also a list of persons to serve as trial jurors, in the superior court of said county, during the ensuing year, or until new lists of jurors shall be provided. In cities and counties having over one hundred thousand in- habitants, such selection shall be made by the judges of the superior court, or a majority of them if all do not attend." 6. Amended by Stats. 1893, p. 297. Designating number of jurors. There is no distinction, in the matter of selection of grand jurors and trial jurors: the names of all the jurors to be selected are placed in the same box, and the court designates separately the number of each class. People v. Crowey, 56 Cal. 36. Until the new list has been certified and filed with the clerk, a trial jury may be selected from the number returned for the preced- ing year. People v. Richards, 1 Cal. App. 566; 82 Pac. 691. Order designating number. The order designating the number of jurors for the ensuing year need not be signed; being made in open court, its entry in the min- utes is suflScient. People v. Baldwin, 117 Cal. 244; 49 Pac. 186. Selection by board of supervisors. A failure to show the selection, as the jury was in fact selected, or the selection of fewer than required by order of the court, is not a material departure from the forms prescribed in respect to the drawing of a jury. People v. Sowell, 145 Cal. 292; 78 Pac. 717. The board may select the jurors at either a regular or an adjourned meet- ing, or at a special meeting called for that purpose. People v. Baldwin, 117 Cal. 244; 49 Pac. 186. Selection by judges. In cities and coun- ties having a population of more than one hundred thousand, jurors are selected in January by the judges of the superior court, instead of by the supervisors. Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341; People v. Durrant, 116 Cal. 179; 48 Pac. 75. Where the minutes kept by the secretary of the judges are incomplete, and do not show the true facts as to the selection of jurors, the presiding judge may order the minutes amended, so that they may accurately show what occurred (People V, Durrant, 116 Cal. 179; 48 Pac. 75; People v. Sowell, 145 Cal. 292; 78 Pac. 717), under the inherent power of a court to amend the record of its transac- tions and proceedings, as to clerical mat- ters, so as to make it speak the truth. People V. Durrant, 116 Cal. 179; 48 Pac. 75; Kaufman v. Shain, 111 Cal. 16; 52 Am. St. Rep. 139; 43 Pac. 393. Obtaining of jurors. See note 53 Am. Dec. 101. § 205. Selection and listing- of persons suitable and competent to serve as jurors. The selections and listings shall be made of persons suitable and competent to serve as jurors, and in making such selections they shall take the names of such only as are not exempt from serving, who are in the pos- session of their natural faculties, and not infirm or decrepit, of fair charac- ter and approved integrity, and of sound judgment. Legislation S 205. 1. Enacted March 11, 1872, and then read: "They must proceed to select and list from those assessed on the assessment-roll of the previous year, suitable persons, competent to serve as jurors; and in making such selection, they must take the names of such only as are not exempt from serving, who are in possession of their natural faculties, and not infirm or de- crepit, of fair character, of approved integrity, and of sound judgment." 2. Amended by Code Amdts. 1880, p. 46, sub- stituting "last preceding assessment-roll of such county, or city and county," for "assessment-roll of the previous year." 3. Amended by Stats. 1881, p. 70, the first sentence (stricken out in 189.3), reading, "They shall proceed to select and list the grand jurors required by said order of the superior court, and then select and list the trial jurors required by said order" ; the remainder of the section be- ing the same as the present te.xt, except for the subsequent changes, noted infra. §§ 206-208 JURORS. 110 4. Amended by Stats. 1893, p. 298. 5. Amended by Stats. 1915, p. 826, striking out, after "serve as jurors," the clause, "who are assessed on the last preceding assessment- roll of such county, or city and county." Effect of summoning persons on panel challenged. That a few persons summoned on a second venire of jurors had also been summoned on the first, is no basis for a challenge to the entire panel. People v. Vincent, 95 Cal. 425; 30 Pac. 581. § 206. Lists to contain how many names. The lists of jurors, to be made as provided in the preceding section, shall contain the number of persons which shall have been designated by the court in its order. The names for such lists shall be selected from the different wards or townships of the re- spective counties in proportion to the number of inhabitants therein, as nearly as the same can be estimated by the persons making said lists ; and said lists shall be kept separate and distinct one from the other. except for an abuse of discretion. People V. Danford, 14 Cal. App. 442; 112 Pac. 474. Legislation § 206. 1. Enacted March 11, 1873, and then read: "Such lists must contain not less than one for every hundred inhabitants of each township or vpard, having regard to the popula- tion of the county, so that the whole number of jurors selected in the county shall amount, at least, to one hundred, and not exceed one thou- sand." 3. Amended by Code Amdts. 1875-76, p. 87, to read: "The lists to be made by the board of supervisors shall contain not less than one hun- dred names and not more than one thousand names, and the grand-jury list for the city and county of San Francisco shall contain not less than one hundred and fifty names and not more than one hundred and eighty names, and the trial-jury list for said city and county shall con- tain not less than eight hundred names and not more than twelve hundred names; and within the limits above prescribed, the said lists shall con- tain the names of as many persons as will, in the judgment of the judges, or the board of super- visors, be required as jurors in the county during the year next ensuing. The names for all such lists shall be selected from the different wards or townships of the respective counties, in pro- portion to the number of inhabitants therein, as nearly as the same can be estimated by the per- sons making such lists." 3. Amended by Code Amdts. 1880, p. 46, to read: "The list to be made shall contain the number of persons which shall have been desig- nated by the court. The names for such list shall be selected from the different wards or town- ships of the respective counties in proportion to the number of inhabitants therein, as nearly as the same can be estimated by the persons making Buch list." 4. Amended by Stats. 1881, p. 70. Construction of section. The provisions of this section are directory, and the ac- tion of the judges will not be disturbed. Number designated. Where the court orders a number of jurors to be drawn, but, through inadvertence or mistake, an omission to draw two of the numbers on the list does not constitute a material and substantial departure from the law. Peo- ple V. Sowell, 145 Cal. 292; 78 Pac. 717. The supervisors are at liberty to select, from the names left in the box at the end of the year, the names of such persons as possess the necessary qualifications of jurors, and who have not served the previ- ous year, and make them part of the list for the current year. People v. Eodley, 131 Cal. 240; 63 Pac. 351; People v. Eichards, 1 Cal. App. 566; 82 Pac. 691. Proportionate selection. The list is to be composed of names of persons from wards or townships in proportion to the inhabi- tants, but, in the absence of a showing to the contrary, it will be presumed, where none are selected from a certain township, that there are no qualified jurors therein. People V. Sowell, 145 Cal. 292; 78 Pac. 717. The population may be estimated from the number of votes cast. People v. Eodley, 131 Cal. 240; 63 Pac. 351. List to be kept separate and distinct. A failure to keep a separate list of jurors selected from each township is not a mate- rial departure from the law. People v. Sowell, 145 Cal. 292; 78 Pac. 717. § 207. [Person who served as juror during preceding year not to be selected. Repealed.] Legislation § 207. 1. Enacted March 11, 1873. 3. Repealed by Code Amdts. 1875-76, p. 87. § 208. Certified list to be filed with clerk of superior court. 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 superior court. Certification of list. Where the list has been regularly drawn under the order of Legislation S 208. 1. Enacted March 11, 1873, and then read: "Certified lists of the persons selected to serve as jurors must at once be placed in the possession of the county clerk." 3. Amended by Code Amdts. IS'SO, p. 46, changing "must" to "shall." 3. Amended by Stats. 1881, p. 70, to read: "Certified lists of the persons so selected to serve as grand jurors and as trial jurors shall at once be placed in possession of th" county clerk." 4. Amended by Stats. 1S03, p. 298. the court, and the clerk of the board of supervisors is the same person as the clerk of the superior court, it is unnecessary to certify to the list; the clerk may, by tes- timony, identify the list at the time of trial. People v.' Young, 108 Cal. 8: 41 Pac. 281. Ill DUTY OF CLERK — JURORS TO BE DRAWN FROM BOXES, §§ 209-211 §209. Duty of clerk. Jury-boxes. On receiving such lists the county clerk shall file the same in his office, 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 having 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 jurors in a box to be called the ''trial-jury box." Legislation § 209. 1. Enacted March 11, 1873, and then read: "On receiving such lists, the clerk must file the same in his office, and write down the names contained therein on separate pieces of paper, of the same size and appearance, and fold each piece so as to conceal the name thereon, and deposit them in a box to be called the 'jury- box.' " 3. Amended by Code Amdts. 1875-76, p. 87, to read: "On receiving such lists, the clerk must file the same in his office, and write down the names contained therein on separate pieces of paper, of the same size and appearance, and fold each piece so as to conceal the name thereon; and, in the city and county of San Francisco, he shall deposit the pieces having on them the names of 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 persons selected to serve as trial jurors, in a box to be called the 'trial-jury box,' and in the other coun- ties of the state he shall deposit the said pieces in a box to be called the 'jury-box.' " 3. Amended by Code Amdts. 1880, p. 47, changing the first sentence to read as at present, and the second sentence to read, "He shall de- posit the pieces of paper having on them the names of the persons selected in a box, to be called the 'jurj'-box.' " 4. Amended by Stats. 1881, p. 70. § 210. Regular jurors to serve one year. The persons whose names are so returned shall be known as regular jurors, and shall serve for one year and until other persons are selected and returned. The action of a grand jury may be con- sidered valid until the body is discharged by the court or by operation of law: the mere expiration of the year does not effect a discharge by operation of law. People V. Leonard, 106 Cal. 302; 39 Pac. 617. Service of juror. Serving on a jury is the only way in which a juror can serve, within the meaning of this section (Hab sey V. Superior Court, 152 Cal. 71, 84; 91 Pac. 987), which is applicable laoth to grand and to trial jurors. People v. Leon- ard, 106 Cal. 302; 39 Pac. 617. The order of a trial court discharging a jury upon reaching a verdict in any given case does not prove that the individual jurors are thereby relieved from future jury duty. People v. Gilmore, 17 Cal. App. 737; 121 Pac. 697. Legislation § 210. 1. Enacted March 11, 1873. 3. Amended by Code Amdts. 18S0, p. 47, changing (1) "are known" to "shall be known," and (2) "must serve" to "shall serve." Terra of service. This section only lim- its the time in which the persons selected shall serve for the purpose of the draw- ing and impanelment of the jury, and im- poses no limitations whatever upon the life of a jury, either grand or trial, once drawn and impaneled, and the mere selec- tion, listing, and returning of the grand jurors for the succeeding year does not, of itself, by operation of law, discharge a grand jury then in existence. Halsey v. Superior Court, 152 Cal. 71; 91 Pac. 987. The term of service is one year, and until other persons are selected and returned. In re Gannon, 69 Cal. 541; 11 Pac. 240; Jacobs v. Elliott, 104 Cal. 318; 37 Pac. 942. § 211. Jurors to be drawn from boxes. 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 he drawn from the "trial-jury box"; and if, at the end of the year, there shall be the names of persons 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 persons may be placed on the list of jurors drawn for the succeeding year. Legislation § 211. 1. Added by Code Amdts. 1875-76, p. 87, and then read: "In the city and county of San Francisco, the names of per- sons 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 in the other counties of the state, the names of persons, whether for grand jurors or trial jurors, shall be drawn from the 'jury-box.' " 3. Amended by Code Amdts. 1880, p. 47, to read: "The names of persons, whether for grand or trial jurors, shall be drawn from the 'jury- box' ; and if, at the end of the year, there shall be the names of persons in the 'jury-box' who may not have been drawn during the year to serve as jurors, the names of such persons may be placed upon the lists of jurors drawn for the succeeding vear." 3. Amended by State. 1881, p. 70. §§214,215 JURORS. 112 AKTICLE IV. OF DRAWING JURORS FOR COURTS OF RECORD. Shall proceed, when. [Repealed.] Drawing, how conducted. Preservation of ballots drawn. Copy of list to be furnished by clerk. [Repealed.] § 214. Order of judge or judges for drawing of § 218. jury. § 219. § 215. When clerk shall draw. § 220. I 216. Sheriff and judge to witness drawing. § 221. [Repealed. ] §.217. Drawing, when to be adjourned. [Re- pealed.] § 214. Order of judge or judges for drawing of jury. 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 jnvy is in attendance, the court may make an order directing a trial jury to be drawn, and sum- moned to attend before said court. Such order shall specify 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 w^hen a jury shall be in attendance. required to make an order for the drawing from the "regular jurors" (Halsey v. Supe- rior _ Court, 152 Cal. 71; 91 Pac. 987), specifying the number of jurors to be drawn. Jackson v. Baehr, 138 Cal. 266; 71 Pac. 1(J7. A.n order changing the hour for the drawing, fixed by the presiding judge, does not inA-alidate the drawing. Levy v. Wilson, 69 Cal. 105; 10 Pac. 272. An order directing the clerk to draw the names of a designated number of good and lawful men to be drawn from the county, is a sufficient order. People v. Wheeler, 65 Cal. 77; 2 Pac. 892. A judge, disqualified to try a particular cause, may order and superintend the drawing of jurors for the ensuing term. Peo[)Ie v. Ah Lee Doon, 97 Cal. 171, 31 Pac. 933. CODE COMMISSIONERS' NOTE. A substan- tial compliance with the time of drawing jurors, as prescribed by this chapter, is perhaps suffi- cient. See People v. Rodrifruez, 10 Cal. 50; People V. Stuart, 4 Cal. 218; Thrall v. Smiley, 9 Cal. 537; see also note to § 225, post. Summoning jury. See post, § 226. Legislation § 214. 1. Enacted March 11, 1873, and then read : "Not less than ten nor more than thirty days before the commencement of any term of court, the judge thereof, if a jury will be required therefor, must make and file with the county clerk an order that one be drawn. The number to be drawn must be fixed in the order; if to form a grand jury, it must be twenty-four, and if a trial jury, such number as the judge may direct." 3. Amended by Code Amdts. 1S73-74, p. 287, to read: "Before the commencement of any term of court, the judge thereof, if a jury will be required therefor, must make and file with the county clerk, an order that one be drawn. The number to be drawn must be named in the order; if to form a grand jury, it must be twenty-four, and if a trial jury, such number as the judge may direct; and the time must be designated at which the drawing will take place." 3. Amended by Code Amdts. 1875-76, p. 88, changing the last sentence, down to the word "direct," to read: "If to form a grand jury, it must be not less than twenty-five and not more than thirty ; and if to form a trial jury, such number as the judge may direct." 4. Amended by Code Amdts. 1880, p. 47. Order directing drawing. The judge is § 215. "Wlien clerk shall draw. Immediately upon the order mentioned in the preceding section being made, the clerk shall, in the presence of the court, proceed to draw the jurors from the "trial-jury box." Legislation § 215. 1. Enacted March 11, 1873, in substance, in §§215, 216, 217, 218, which then read: "215. At least one day before the drawing, the clerk must notify the sheriff and county judge of the time when such drawing will take place, which time must not be more than three days after the receipt by him of the order for such drawing." "216. At the time so ap- pointed, the sheriff, in person or by deputy, and the county judge, must attend at the county clerk's office to witness such drawing, and if they do so, the clerk must, in their presence, proceed to draw the jurors." "217. If the officers so noti- fied do not appear, the clerk must adjourn the drawing until the next day, and, by written notice, require two electors of the county to at- tend such drawing on the adjourned day." "218. If, at the adjourned day, the sheriff, county judge, and electors, or any two of such persons, appear, the clerk must in their presence proceed to draw the jurors." 3. By Code Amdts. 1873-74, p. 287, §§ 215 and 217 were amended to ro.id : "215. Before the drawing, the clerk must notify the sheriff and county judge of the time appointed for such drawing." "217. If the officers named do not appear, the clerk must adjourn the drawing till the next day, and, by written notice, require two electors of tlie county to attend such drawing on the adjourned day." 3. By Code Amdts. 18SO, p. 47, § 215 was amended to read as at present, except that the word "trial" was omitted before "jury-box." 4. Amended by Stats. 1881, p. 71. In the presence of the court. The origi- nal section required the clerk to notify the sheriff and the judge of the drawing; but if they were present, although not notified, the drawing was valid. People v. Galla- gher, 55 Call 462. 113 DRAWING, now CONDUCTED. §§ 21G-220 § 216. [Sheriff and judge to witness drawing. Repealed.] Legislation § 216. See ante, Legislation § 215. § 217. [Drawing, when to be adjourned. Repealed.] Legislation § 217. See ante, Legislation § 215. §218. [Shall proceed, when. Repealed.] Legislation g 218. See ante, Legislation § 215. § 219. Drawing, how conducted. The clerk must conduct said drawing as follows : 1. He must shake 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 satis- faction 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 drawn in his place, and the fact shall be entered upon the minutes of the court. The 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 clerk shall make 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 drawing, and the number of the jurors drawn, and the time when, and the place where such jurors are required to appear. Such certificate and list shall be delivered to the sheriff for service. Legislation § 219. 1. Enacted March 11, 1873, the persons so drawn for trial jurors, and of and then read: "The cleric must conduct such those drawn for grand jurors, with their places drawing as follows: 1. He must shake the box of residence, and specifying for what court they containing the names of jurors returned to him, were drawn, must be mad- and certified by the from which jurors are required to be drawn, so clerk and the attending officers or persons, and as to mix the slips of paper upon which such delivered to the sheriff of the county." names were written, as much as possible; 2. He 3. Amended by Code Amdts. ISSO, p. 47, to must then publicly draw out of the box as many read the same as at present, except that (1) in such slips of paper as are ordered by the judge; subd. 1 (a) the words "the trial" were omitted 3. A minute of the drawing must be kept by one before the word "jurors," and (b) the word of the attending ofiicers, in which must be entered "said" was changed from "the"; (2) in subd. 2, the name contained on every slip of paper so after the word "name," the phraseology was drawn, before any other slip is drawn; 4. If, changed from "contained on every slip of paper after drawing the whole number required, the so drawn from the 'jury-box'"; (3) in subd. 3, name of any person has been drawn who is dead (a) in first line, "said" was changed from "the," or insane, or who has permanently removed from (b) words "having such name on it .shall be" the county, to the knowledge of the clerk or any were changed from "containing such name be," other attending officer, an entry of such fact (c) word "be," between "required" and "drawn," must be made in the minute of tlae drawine, and was changed from "are," and (d) word "the" the slip of paper containing such name must be omitted in words "number of the jurors." destroyed; 5. Another name must then be drawn, S. Amended by Stats. 1S81, p. 71. in place of that contained on the slip of paper r<«„i4«„„4.4«... «* — j— rm. a so destroyed, which must, in like manner, be Ceriification of Order. The purpose of entered in the minutes of the drawing; 6. The requiring the clerk to certify to the date same proceedings must be had 'as often as may of the order and of the drawing is merely be necessary, until the whole number of jurors ^ iilentificqtion • in order ofherwit^p iden- required are drawn; 7. The minute of the draw- ^PJ laentincation, an order otnerwise icien ing must then be signed by the clerk and the titled IS sumcient. People V. lams, 5 1 Lai. attending officers or persons, and iiled in the 115. clerk's office; 8. Separate lists of the names of § 220. Preservation of ballots drawn. After a drawing of persons to serve as jurors, the clerk shall preserve the ballots drawn, and at the close 1 Fair. — 8 §§ 221-226 JURORS. 114 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 persons who did not serve as jurors for the session or sessions aforesaid, and who were not exempt or incompetent. Legislation g 220. 1. Enacted March 11, 1873, 3. Amended by Code Amdts. 1875-70, p. 88, and then read: "After the adjournment of any to read: "After a drawing of persons to serve court at which jurors have been returned, as as jurorg, the clerk muat preserve the ballots herein provided, the clerk must inclose the ballots drawn; and at the close of the term of the court containing the names of those who attended and for which the drawing was had, must replace in served as jurors in an envelope, under seal, and the box from which they were taken, all ballots the ballots of those who did not attend and which have on them the names of persons who serve must be returned to the jury-box. The did not serve as jurors for the term, and who ballots sealed in envelopes must not be returned were not excused because they were exempt or to the jury-box until all the ballots therein have incompetent." been exhausted." 3. Amended by Code Amdts. ISSO, p. 48. § 221. [Copy of list to be furnished by clerk. Repealed.] Legislation § 221. 1. Enacted March 11, 1873. in amending Part I. 3. Repealed by Code Amdts. 1880, p. 21, ARTICLE V. OF SUMMONING JURORS FOR COURTS OF RECORD. §225. Sheriff to summon jurors, how. §227. Of summoning jurors to complete a panel. §226. Of drawing and summoning jurors to at- §228. Compensation of elisor, tend forthvdth. § 225. Sheriff to summon jurors, how. 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 ses- sion 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, or by mailing such notice by registered mail, and shall return the list to the court at the opening of the regular session thereof, or at such session or time as the jurors may be ordered to attend, specifying the names of those who were summoned, and the manner in which each person was notified. Legislation § 225. 1. Enacted March 11, 1873, lo secure honest and intelligent men for the trial, and_ then read: "As soon as he receives the list and it is of no practical consequence in what of jurors drawn, the sheriff must summon the order or at what time during the term they are persons named therein to attend, by giving per- summoned. It would be productive of great hard- sonal notice to each, or by leaving a written ship to permit a second trial upon a ground so notice at his place of residence, with some per- technical and unsubstantial. Unless the irreg- son of proper age, and must return the list to ularity complained of in the formation of the the court at the opening thereof, specifying the jury goes to the merits of the trial, or leads to names of those who were summoned and the man- tlie inference of improper influence upon their ner in which each person was notified." conduct, their verdict should not be disturbed. 3. Amended by Code Amdts. 1880, p. 48. King v. Hart, 4 Barn. & Aid. 430; United States 3. Amended by Stats. 1915, p. 931, adding v. Gilbert, 2 Sum. 19; Fed. Cas. No. 15204; "or by mailing such notice by registered mail." People v. Ransom, 7 Wend. 417; Amherst v. Had- TN. i j> ^ _4^ TTT, XT -, ley, 1 Pick. (JIass.) 3S; Commonwealth v. Jus- Inity of sneriff. Whether a drawn or a tices of Court of Sessions, 5 Mass. 435. In special panel, the sheriff must, in the first in- Page v. Inhabitants of Danvera, 7 Met. (Mass.) stance, execute the order of court in serv- 327, it was objected that certain of the jurors , ' -. ,. who sat m the case were not selected m conform- ing the summons; where he was disquali- ity with law, and were not qualified to act, and fied, the venire, at common law, was directed this fact the parties had for the first time learned in the coroTipr Pponlp v Vflsnnez 9 Cal since the trial and decision; but the court, per u> tne coroner, -t'eopie v. vasquez, y uai. gj^^^_ ^ ^ ^^.^^. ..j^ ^^^^^ ^^^ ^^^ irregularity App. Ot;0^ yy Irac. JoZ. in the manner of selecting the jury, and if this CODF COMMISSIONERS' NOTE. The alleged would have been good ground of exception, if sea- disqualification of one of the jurors consists in sonably taken, still it came too late, aft_er pro- the fact that his name was not on the venire re- ceedmg to trial. The ground is not that the turned by the sheriff It appears, however, that jurors were interested or prejudiced, or otherwise hp had been summoned at the commencement of personally improper, but thai there was a mere the term and that his name was entered on the irregularity, not apparently affecting the merits, minutes 'and placed in the box, and drawn for Such an objection, if available at all, must be the trial in the same manner as the other jurors seasonably taken. This results from strong con- were drawn. The objection, if it had any valid- siderations of policy and expediency, rendering it ity should have been urged at the trial; it comes an imperative rule of practice. Thrall v. Smiley, too late after verdict. The object of the law is 9 Cal. 337. § 226. Of drawing and summoning jurors to attend forthwith. When- ever jurors are not drawn or summoned to attend any court of record or 115 SUMMONING JURORS TO COMPLETE PANEL. §227 on foreclosure of session thereof, or a sufficient number of jurors fail to appear, such court may order a sufficient number to be forthwith drawn and summoned to attend the court, or it may, by an order entered in its minutes, direct the sheriff, 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 manner provided in the preceding section. from the body of the county (Levy v. Wil- son, 69 Cal. 105; 10 Pac. 272; People v. Vincent, 95 Cal. 425; 30 Pac. 581; People V. Hickman, 113 Cal. 80; 45 Pac. 175; People V. Durrant, 116 Cal. 179; 48 Pac. 75; People v. Sehorn, 116 Cal. 503; 48 Pac. 495); and it is immaterial whether the order for the special venire is made before or after the commencement of the sitting of the court (People v. Williams, 43 Cal. 344; People v. Ah Chung, 54 Cal. 398); and any objection to the order directing the jury to be summoned must be made by challenge to the panel. People V. Kelly, 46 Cal. 355. The court has dis- cretion to order a jury drawn from the box, or to issue a special venire (Levy v. Wilson, 69 Cal. 105; 10 Pac. 272; People v. Leonard, 106 Cal. 302; 39 Pac. 617; People y. Sehorn, 116 Cal. 503; 48 Pac. 495), and it is no ground of objection that the regu- lar jury was not exhausted. People v. Durrant, 116 Cal. 179; 48 Pac. 75; People V. Sehorn, 116 Cal. 503; 48 Pac. 495. While the better practice would be to fill the panel from the jury-box in such cases (Levy V. Wilson, 69 Cal. 105; 10 Pac. 272; People V. Suesser, 142 Cal. 354; 75 Pac. 1093), yet it is not even an irregularity to order a special venire. Leahy v. Southern Pacific E. R. Co., 65 Cal. 150; 3 Pac. 622; People v. Prather, 134 Cal. 436; 66 Pac. 589, 863. The court also has power to direct a special venire, where the jurors, though drawn, have not been summoned (People V. Devine, 46 Cal. 45; People v. Vincent, 95 Cal. 425; People v. Sehorn, 116 Cal. 503; 48 Pac. 495), and where no list of persons to serve during the year has been made by the board of supervisors. People V. Durrant, 116 Cal. 179; 48 Pac. 75; People v. Sehorn, 116 Cal. 503; 48 Pac. 495; People v. Prather, 134 Cal. 436; 68 Pac. 589, 863. As the matter of excusing jurors is largely in the discretion of the court, too great liberality in excusing them does not affect the regularity of the spe- cial venire. People v. Hickman, 113 Cal. 80; 45 Pac. 175. Elisor. Appointment of, mortgage. See post, § 726. Legislation § 226. 1. Enacted March 11, 1873, and then read : "Whenever jurors are not drawn and summoned to attend any court of record, or a sufficient number of jurors fail to appear, such court may, in its discretion, order a sufficient number to be forthwith drawn and summoned to attend such court; or it may, by an order entered on its minutes, direct the sheriff of the county forthwith to summon so many good and lawful men of his county to serve as jurors as the case may require. And in either case such jurors must be summoned in the manner provided by the preceding section." 3. Amended by Code Amdts. 1873-74, p. 288, (1) changing the word "such" to "the," in the words "attend the court"; (2) adding the words "an elisor selected by the court, or," before "the sheriff"; and (3) changing the word "his" to "the," in words "men of the county." 3. Amended by Code Amdts. ISSO, p. 48. Elisor. An elisor is a person appointed to serve process or return a jury, when the* sheriff and the coroner are incompetent (Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341); but, unless both are disquali- fied, the court has no power to appoint an elisor (Wilson v. Roach, 4 Cal. 362; Peo- ple v. Fellows, 122 Cal. 233; 54 Pac. 830; People v. Vasquez, 9 Cal. App. 545; 99 Pac. 982) ; and before appointing an elisor, the court should require a showing that both are disqualified (Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341; People v. Irwin, 77 Cal. 494; 20 Pac. 56; People v. Yeatou, 75 Cal. 415; 17 Pac. 544); but if it is ad- mitted that the sheriff is disqualified, and the coroner has acted on the jury of in- quest, an elisor must be appointed (People V. Sehorn, 116 Cal. 503; 48 Pac. 495); and also where the sheriff is an interested party and there is no coroner (Pacheco v. Hunsacker, 14 Cal. 120), and also where the coroner is unable to act by reason of sickness. People v. Ebanks, 117 Cal. 652; 40 L. R. A. 269; 49 Pac. 1049. The sheriff being disqualified, his deputies are like wise disqualified. People v. Le Doux, 155 Cal. 535; 102 Pac. 517. Special venire. Where a sufficient num- ber of jurors fail to appear, of those sum- moned and returned according to law, the court may fill the panel, by special venire. § 227. Of summoning jurors to complete a panel. When there are not competent jurors enough present to form a panel the court may direct 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 §§ 228-232 JURORS. 116 sheriff or elisor shall summon the number so ordered accordingly and return the names to the court. Legislation § 227. 1. Enacted March 11, 1873 (1) changing the words "or other proper ofBcer" (based on Practice Act, §589), and then read: to "or an elisor selected by the court," and (2) "When there are not competent jurors enough adding the words "or elisor" before "must sum- present to form a panel, the court may direct the mon." sheriff or other proper officer to summon a suffi- 3. Amended by Code Amdts. ISSO, p. 48. cicnt number of persons, having the qualification o • -i of jurors, to complete the panel, from the body Special venire to complete panel. See of the county and not from the bystanders, and note ante, § 226. the sheriff must summon the number so ordered, accordingly, and return the names to the court." CODE COMMISSIONERS' NOTE. See notes S. Amended by Code Amdts. 1873-74, p. 288, to §§ 214 and 225, ante. § 228. Compensation of elisor. An elisor who shall, by order of a court of record, summon persons to serve as jurors, shall be entitled to a reason- able 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. Legislation § 228. 1. Added by Code Amdts. der," and (2) the section ended with the words 1875—76. p. 88, and read as at present, except "paid out of the county treasury." that (1) the word "the" was used before "or- 2. Amended by Code Amdts. 1880, p. 49. ARTICLE VI. OF SUMMONING JUKOES FOE COUETS NOT OF EECOED. §230. Jurors for justices' or police courts. §232. Officer's return. § 231. How to be summoned. § 230. Jurors for justices' or police courts. When jurors are required in any of the justices' courts, or in any police or other inferior court, they shall, upon order of the justice, or any one of the justices where there is more than one, or of the judge thereof, be summoned by the sheriff, con- stable, marshal, or policeman of the jurisdiction. Legislation § 230. 1. Enacted March 11, 1873, commissioner saying in his note, "The amend- and then read : "When jurors are required in any ment consists in changing the word 'if to 'of to police or justice's court, they must, upon the correct an error." order of the judge or justice thereof, be sum- j t. • ji t ^ j. moned by the sheriff, marshal, policeman, or By Wliom Summoned. It IS the duty of constable of the jurisdiction." the justice Or judge Ordering the jury to 2. Amended by Code Amdts. 1880, p 49, to • ^^^ g^^ instance, by whom it shall read as at present, except that (1) it had the ■, •' ' -, -, '•',,.. word "the" before "order," and (2) the word be summoned; and any error therein is not "of" was printed "if" before the words "the jurisdictional. Wittman v. Police Court, 145 '"Kmended by Stats. 1G07, p. 680 ; the code Cal. 474; 78 Pac. 1052. §231. How to be summoned. Such jurors must be summoned from the persons competent to serve as jurors, residents of the city and county, town- ship, city, or town in which such court has jurisdiction, by notifying: them orally that they are summoned, and of the time and place at which their attendance is required. Legislation § 231. 1. Enacted March 11, 1873, them orally that they are so summoned, and of and then read: "Such jurors must be summoned the time and place at which their attendance is from the persons resident of the city or town- required." ship, competent to serve as jurors, by notifying 3. Amended by Code Amdts. 1S80, p. 49. §232. Officer's return. 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. Legislation § 232. 1. Enacted March 11, 1873, their appearance, return it, Avith a list of the and thi-n read: "The officer summoning such persons summoned indorsed thereon." jurors must, at the time fixed in the order for 3. Amended by Code Amdts. 1880, p. 49. 117 SUMMONING JURIES OF INQUEST — IMPANELING GRAND JURIES. §§235-241 ARTICLE VII. OF SUMMONING JURIES OF INQUEST. §235. How to be summoned. §235. How to be summoned. Juries of inquest shall be siiramoned by the officer before whom the proceedings in which they are to sit are to be had, or by any sheriff, consta' le, or policeman, from the persons competent to serve as .jurors, resident of the county, or city and county, by notifying them orally that they are so summoned, and of the time and place at which their attendance is required. Legislation § 235. 1. Enacted March 11, 1873, tent to serve as jurors, by notifying them orally and then read: "Juries of inquest must be sum- that they are so summoned, and of the time and moned by the officer before whom the proceedings place at which their attendance is required." are h?.d, or any sheriff, polictman, or constable, 3. Amended by Code Amdts. ISSO, p. 49, from the persons resident of the county compe- ARTICLE VIII. OBEDIENCE TO SUMMONS, HOW ENFORCED. § 238. Attachment and fine. § 238. Attachment and fine. 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 fine 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 oppor- tunity has been offered the juror to be heard. Legislation S 238. 1. Enacted March 11, 1873 j "fifty dollars." based on Stats. 1863, p. 630. ^^t^„ ^^-..-.^-^r.^-,^^-,-^-^^. -^-rr^r,,-,, ^ 3. Amended by Code Amdts. 1880, p. 49, CODE COMMISSIONERS' NOTE. Stats. 1863. changing the words "one hundred dollars" to P- "30. ARTICLE IX. OF IMPANELING GRAND .JURIES. § 241. Grand juries, when and by whom impan- § 243. Manner of impaneling prescribed in Penal tied. Code. i 242. How constituted. § 241. Grand juries, when and by whom impaneled. Every superior court, whenever in the opinion of the court the public interest requires it, must make and file with the county clerk, an order directing a jury to be drawn, and designate the number, which, in case of a grand jury, shall not be less than twenty-five nor more than thirty. In all counties there shall be* at least one grand jury drawn and impaneled in each year. Such order must designate 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 provided for drawing and summoning trial jurors; and the names of any persons drawn, who may not be impaneled upon the grand jury, may be again placed in the grand-jury box. Summoning grand jury. Const., art. i, § 8. clerk of their respective counties an order direct- ing a jury to be drawn, and designating the num- Legislation § 241. 1. Enacted March 11, 1S73, ber which, in case of a grand jury, sliall not be and then read: "At the opening of each regular less than twenty-five nor more than thirty. In term of the county court (unless otherwise all counties having less than three superior judges directed by the judge), and as often thereafter there shall be one grand jury drawn and impan- as to the judge may seem proper, a grand jury eled in each year, and in all counties having may be impaneled." three or more superior judges there shall be two 3. Amended by Code Amdts. 1880, p. 50, to grand juries drawn and impaneled in each year, read: "Every superior court, whenever in the Such order must designate the time at which the opinion of the court the public interests may drawing will take place. The names of such require it, must make and file with the county jurors shall be drawn, the list of names certified §§242-246 JURORS. 118 and summoned as provided for drawing and sum- moning trial jurors; and t!u r ames of any per- sons drawn who may not be impaneled upon the grand jury may be again placed in the 'jury- box.' " 3. Amended by Stats. 18S1, p. 71, ( I) trans- posing the words "may" and "must" in the sec- ond line, thus changing the words to "must require it, may make" (sic) ; (2) inserting "court" be- tween the words "superior judges," in both in- stances; and (3) inserting "grand" before "jury- box," in last line. 4. Amended by Stats. 1901, p. 122; uncon- stitutional. See note ante, § 5. 5. Amended by Stats. 1905, p. 139. Impanelrnent. A grand jury impaneled in accordance with this section and § 226, ante, is valid. People v. McDonnell, 47 Cal. 134; Levy v. Wilson, 69 Cal. 105; 10 Pac. 272. The grand jury was formerly a part of the old county court system. Halsey v. Superior Court, 152 Cal. 71; 91 Pac. 987. Time of drawing, and official existence. The time of drawing and of the official ex- istence of the grand jury is not fixed. In re Gannon, 69 Cal. 541, 545; 11 Pac. 240. A grand jury, regularly impaneled and organ- ized, does not become discharged, by opera- tion of law, by the mere selection, listing, and returning of the grand jurors for the succeeding year. Halsey v. Superior Court, 152 Cal. 71; 91 Pac. 987. §242. How constituted. When, of the persons summoned as grand jurors and not excused, nineteen are present, they shall constitute the grand jury. If more than nineteen of such persons are present, the clerk shall write their names on separate ballots, Avhich 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 filled as provided in section two hundred and twenty-six of this code. And whenever, 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, deposit- ing them in a box, and drawing as above provided. Legislation § 242. 1. Enacted March 11, 1ST3 venire may be ordered (Levy v. Wilson, 69 Cal. 105; 10 Pac. 272); and where the im- panelrnent differs only in form from the requirements of the statute, it will not viti- ate a panel as made up finally from a spe- cial venire. People v. Prather, 134 Cal. 436; 66 Pac. 589, 863; People v. Leonard, 106 Cal. 302; 39 Pac. 617. Number of grand jurors. Where nine- teen persons are present, they constitute a grand jury, and should the number be less, the panel may be filled by special venire. Bruner v. Superior Court, 92 Cal. 239; 28 Pac. 341. The number of grand jurors, prior to the amendment of this section in 1876, was not less than thirteen nor more than fifteen. People v. Hunter, 54 Cal. 65. § 243. Manner of impaneling prescribed in Penal Code. Thereafter such proceedings shall be had in impaneling the grand jury as are prescribed in part two of the Penal Code. (based on Stats. 1863, p. 634), and then read: "When, of the jurors summoned, not less than thirteen nor more than fifteen attend, they shall constitute the grand jury. If more than fifteen attend, the clerk must call over the list sum- moned, and the fifteen first answering shall con- stitute the grand jury. If less than thirteen attend, the panel may be filled to fifteen as pro- vided in section two hundred and twenty-six." 3. Amended by Code Amdts. 1875-76, p. 88, to read as at present, except that (1) in the first line the word "persons" was changed from "jurors," and the words "as grand jurors" were added after "summoned"; (2) the words "clerk shall" were changed from "clerk must"; and (3) the words "of this code" were added after "sec- tion two hundred and twenty-six." 3. Amended by Code Amdts. 1880, p. 50. Special venire to complete panel. For any defect in the original panel, a special Formation of grand jury. See Pen. Code, §§ 894-901. Legislation § 243. 1. Enacted March 11, 1873. 3. Re-enacted by Code Amdts. 18SO, p. 50, in amending Part I. ARTICLE X. OF IMPANELING TRIAL JURIES IN COURTS OF RECORD. 246. Clerk to call list of jurors summoned. 247. Manner of impaneling prescribed in part two. § 248. Counties having more than one judge. § 246. Clerk to call list of jurors summoned. 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 119 MANNER OF IMPANELING PROCEEDINGS IN FORMING JURY. §§ 247-250 jurors summoned. The clerk shall then write the names of the jurors pres- ent 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. Legislation § 246. 1. Enacted March 11 1872, jurors are actually engaged in deliberating and read as at present, except that (1) the word „Tinvi n -rr^^^ii^t. „j. ii, i.- i i. j- "shall," after "clerk," was changed from "must," ^P^^ a verdict at the time; and when dis- ia both instances; (2) the words "there," before Charged from that verdict, it is the duty of "in the presence," was changed from "then"; the clerk to return their names to the iurv- and (3) it did not contain the words "or locked, ' i,„„ __ j ;f j.i,- • „„. r,^ .. ■ ,, ■, / after the word "sealed." ^^^> ^°^ ^^ ^'^^^ is not done, it IS the duty 3. Amended by Code Amdts. 1880, p. 50. of the Court to discharge those jurors who All names must be placed in the jury- have already beeu sworn on such latter box. The names of all jurors must be put f"^ ,^°<3 commence the impanelment anew. in the jury-box at the beginning of the im- People v. Edwards, 101 Cal. 543; 36 Pac. 7. panelment of the jury, unless some of the §247. Manner of impaneling- prescribed in part two. Whenever there- after 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 two of this code. If the action be a criminal one, the jury shall be impaneled as prescribed in the Penal Code. Formation of jury. called for trial by the court, such proceedings 1. In civil action. See post, §§ 600-604. shall be had in impaneling the trial jury as are 2. Criminal cases. See Pen. Code, §s 1055- prescribed in Part II of this code." 1089. 2* Amended by Coda Amdts. 18SO, p. 51. Legislation § 247. 1. Enacted March 11, 1873, ^^'l^^^i examination Of jUTors. See note and then read: "When thereafter an action is ante, s 193. § 248. Counties having more than one judge. In any county having two or more judges of the superior court, a separate panel of jurors may be drawn, summoned and impaneled for each judge, or one panel may be drawn, summoned and impaneled by any one of the judges for use in the trial of cases before any two or more of the judges, as occasion may require. In such counties, when a panel of jurors is in attendance for service before one or more of the judges, whether impaneled for common use or not, the whole or any number of the jurors from such panel may be required to attend and serve in the trial of cases, or to complete a panel, or jury, before any other of the judges. If one of the judges has a separate panel of jurors, no part thereof shall, without his consent, be taken to serve before another judge. Legislation § 248. Added by Stats. 1907, box full before exercising his peremptory p. 680; the code commissioner saying "A new challenges; and the panel, if incomplete, section settling the practice with reference to i_ i . j j, '^ ,i ■ • i • '- , panels of jurors in the superior court in counties may be completed from the trial-jury panel having two or more judges of that court." summoned in another department of the Box must be fuU. A defendant in a same superior court. People v. Loomer, 13 criminal case is entitled to have the jury- Cal. App. 654; 110 Pac. 466. ARTICLE XI. OF IMPANELING TEIAL JURIES IN COURTS NOT OF RECORD. § 250. Proceedings in forming jury. § 251. Manner of impaneling. § 250. Proceedings in forming jury. At the time appointed for a jury trial in justices', police, or other inferior courts, the 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. §§ 251-259 COURT COMMISSIONERS. 120 Legislation § 250. 1. Enacted March 11, 1873 must be written upon separate slips of paper, (based on Practice Act, § 588), and then read: folded so as to conceal the names, and placed in "At the time appointed for a jury trial, in police a box, from which the trial jury may be drawn." or justices' courts, the list of jurors summoned 3. Amended by Code Amdts. 1880, p. 51. must be called, and the names of those attending § 251. Manner of impaneling. 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 two of this code. Similar provision. See ante, § 247. 3. Re-enacted by Code Amdts. 18S0, p. 51, „ , ,, , ,- -„_r. in amending Part I. Legislation g 251. 1. Enacted March 11, 1873. ARTICLE XII. OF IMPANELING JURIES OF INQUEST. § 254. Manner of impaneling. § 254. Manner of impaneling. The manner of impaneling juries of in- quest is prescribed in the provisions of the different codes relating to such inquests. Legislation § 254. 1. Enacted March 11, 1873, stilute for the then existing statutes on the same and then read; "The mode and manner of im- subject. We had a jury law applicable to thirty- paneling juries of inquest are provided for in three counties; another, entirely different in its the provisions of the different codes relating to provisions, applicable to sixteen counties; and such inquests." ^''" another, differing from both, applicable to 2 Amended bv Code Amdts. 1880, p. 51. San Francisco alone (Stats. 1861, p. 57.3; Stats. „ „^„„ r^u ■ 1863, p. 630; Stats. 1864, p. 524); and various CODE COMMISSIONERS' NOTE. The commis- statutes of local application, eioners reported the preceding chapter as a sub- CHAPTER II. COURT COMMISSIONERS. § 258. Appointment and qualificationa. § 259. Powers of court commissioners. § 258. Appointment and qualifications. The superior court of every city and county in the state may appoint six commissioners, to be designated each as "court commissioner" of such city and county; and the superior court of every other county in the state may appoint one commissioner, to be desig- nated as "court commissioner" of such county. Such commissioners shall be citizens of the United States, and residents of the city and county, or county, in which they are appointed, and hold offices during the pleasure of the courts appointing them. Court commissioners. See Const., art. vi, § 14. single county are assigned to different districts, ■I av> then a commissioner may be appointed to reside Legislation § 258. 1. Enacted March ll, ^°Jf in each portion of the county thus assigned." (based on Stats. 1863, p. 338; Stats. 18b4, 3. Amended by Code Amdts. 1880, p. 51. T> 2'>91 and then read: "The district courts may annoint for each county of their respective dis- CODE COMMISSIONERS' NOTE. Stats. 1863, tricts a commissioner, to be designated as 'court p. 338; Stats. 1864, p. 229. comm'issioner' of the county. If portions of a 8 259. Powers of court commissioners. Every court commissioner shall have power : 1. To hear and determine ex parte motions for orders and writs, except orders or writs of injunction in the superior court of the county, or city and county, for which he is appointed; provided, that he shall have power to hear and determine such motions only in the absence or inability to act of the judge or judges of the superior 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 informa- tion is required by the court ; but any party to the proceedings may except 121 POWERS OF COURT COMMISSIONERS. §259 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 take and approve bonds and undertakings whenever the 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 suffi- ciency, and to administer oaths and affirmations, and take affidavits and depositions 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 requiring proof or acknowledgment for any purpose under 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 subdivision shall not apply to any services of such commissioner, the compensation for which is expressly 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 official acts. Judicial powers, persons having, order enforced before. Ante, § 128, subd. 2. References and triaJs by referees. See post, §§ 638 et seq. Subd. 4. Fees of notaries public. See Pol. Code, § 798. Justices of the peace and court commissioners are the only judicial oiflcers authorized to receive fees. Const., art. vi, § 15. Subd. 5. Official seals, defined. See ante, § 14. Legislation § 259. 1. Enacted March 11, 18T3 (based on Stats. 1863, p. 338; Stats. 1864, p. 229), and then read: "Every such commis- sioner has power: 1. To hear and determine ex parte motions for orders and writs (except orders or writs of injunction) in the district and county courts of the county for which he is ap- pointed; 2. To talce proof and report his conclu- sions thereon, as to any matter of fact (other than an issue of fact raised in the pleadings), upon which information is required by the court ; but any party to the proceedings may except to such report within four 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 take and approve bonds and undertakings whenever the same may be required in actions or proceedings in such dis- trict and county courts, and to examine the sure- ties thereon when an exception has been taken to their sufficiency, and to administer oaths and affirmations, and take affidavits and depositions in any action or proceeding in any of the courts of this state, or in any matter or proceeding whatever." 3. Amended by Code Amdts. 1877-78, p. 98, to read as at present, except that (1) the intro- ductory paragraph, "Every court commissioner shall have power," evidently through some error, was omitted; (2) in subd. 1, (a) the words "superior court" were then printed "district and county courts," (b) and the words "or city and county," before "for which," had not then been added; (3) in subd. 2, the words "five days" were printed "four days"; (4) in subd. 3, the words "superior courts" were then printed "dis- trict and county courts"; (5) in subd. 4, the word "now" was not used before "expressly" ; and (6) subd. 5 then read: "5. To provide, at the expense of the proper county, an official seal, upon which must be engraved the arms of this state, the words 'court commissioner,' and the name of the county in which such commissioner resides." 3. Amended by Code Amdts. 1880, p. 51. Power of court commissioner. The power of a court commissioner cannot be enlarged by consent. Jackson v. Puget Sound Lum- ber Co., 123 Cal. 97; 55 Pac. 788. Ex parte motions. Thie court commis- sioner has no power to hear a motion (Quiggle V. Trumbo, 56 Cal. 626), or to make an order in reference to the dissolu- tion of an injunction, unless the court re- fers such motion to him. Stone v. Bunker Hill Copper etc. Mining Co., 28 Cal. 497. Trial of issue. The court commissioner, as such, has no authority to try an issue of fact raised in the proceedings (Jackson V. Puget Sound Lumber Co., 123 Cal. 97; 55 Pac. 788); but the taking of an account by reference in an action for an account- ing, where the issue is the plaintiff's right to an accounting, is not a trial of an issue, within the meaning of the code. Harris v. San Francisco Sugar Eefining Co., 41 Cal. 393. Approval of bonds. The court commis- sioner has no power to approve the bond of a receiver, whom he was without juris- diction to appoint. Quiggle v. Trumbo, 56 Cal. 626. Administration of oaths. This is a gen- eral authority given to executive and ju- dicial officers, and cannot be limited by judicial construction to particular kinds of oaths. Haile v. Smith, 128 Cal. 415; 60 Pac. 1032. Acknowledgments. Acknowledgments may be taken before the commissioner. Ma'lone v. Bosch, 104 Cal. 680; 38 Pac. 516; People V. Pacific Improvement Co., 130 Cal. 442; 62 Pac. 739. §259 COURT COMMISSIONERS. 122 p CODE COMMISSIONERS' NOTE. Slats. 1863, question Btated by the court but not decided, qqq SfatR 1864 D 229 Id. It was held, that under the Practice Act, Subd 1 ''Except orders,' or writs of injunc- §195, as it existed before the code (compare tion-' the court commissioner has no jurisdiction § 661 of this <=°de), the court commissioner was to hear motions relative to the dissolution of an authorized to extend the time for filing the iniunction Stone V Bunker Hill Copper etc. Min- statement on motion for new trial,, twenty days in ni Co 28 Cal 497. Whether an appeal may addition to the five or ten days given by statute, be taken from an order of a court commissioner Commissioners in eguity were purposely omit- dissolving an injunction, without first applying to ted by the legislature. the district court to correct the error, was a 123 MINISTERIAL OFFICERS OP COURTS OF JUSTICE. §§ 262-2G3 TITLE IV. MINISTERIAL OFFICERS OF COURTS OF JUSTICE. Chapter I. Of Ministerial Officers Generally. § 262. II. Secretaries and Bailiffs of the Supreme Court. §§265,266. III. Phonographic Eeporters. §§ 26S-274b. CHAPTER I. OF MINISTEEIAL OFFICERS GENERALLY. § 262. Election, terms, powers, and duties, where prescribed. § 262. Election, terms, powers, and duties, where prescribed. The modes and times of election, terms, powers, and duties of the attorney-general, clerk of the supreme court, reporter of the decisions of the supreme court, clerks, sheriffs, and coroners, are prescribed in the Political and Penal Codes. Attorney-general. See Pol. Code, §§ 470 et seq. ing the words (1) "and times," (2) "terms," Clerk of supreme court. Pol. Code, §§ 749 et and (3) "decisions of Uie," where they are now seq. printed. Reporter of supreme court decisions. Pol. ^^tit. nn-^irKrrac'Tn-Krrf-Da, xt/mti-ci -cr j »• Code §5 771 et seq CODE COMMISSIONERS' NOTE. For duties County clerks. Pol. Code, §§ 4178, 4179. °^ attorney-general, see Pol Code §470; clerk of Sheriffs. Pol. Code, §§ 4157 et seq.; Pen. Code, supreme court see Pol Code, § 7o0; reporter of §§ 1216 et seq., 1601 et seq. ^^V^n% ""Y^^ao^a ^a%\^^°^%^ T^'fe"^'' ' ^7 Coroners. Pol. Code, §§4143 et seq.; Pen. Pol- ^ode, §§ 4204, 4205; and sheriffs, see Pol Code §1510 Code, §4176; Pen. Code, §§1216 et seq., and §§ 1601 et seq.; coroner."?, see Pol. Code, §§ 4285— Legislation § 262. 1. Enacted March 11, 1873. 4290, inclusire; Pea. Code, § 1510. 2. Amended by Code Amdts. 18SO, p. 52, add- CHAPTER II. SECRETARIES AND BAILIFFS OF THE SUPREME COURT. § 265. Appointment. § 266. Tenure of office, and duties. § 265. Appointment. 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. Legislation § 265. 1. Enacted March 11, 1872, court may appoint a secretary and bailiff." and then read : "The justices of the supreme 3. Amended by Code Amdts. 1880, p. 53. § 266. Tenure of office, and duties. The secretaries and bailiffs shall hold their 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. Legislation § 266. 1. Enacted March 11, 1873, hold," and "shall perform" read "must perform." and as then enacted the words "secretaries and 3. Amended by Code Amdts. 1880, p. 53. bailiffs shall hold" read "secretary and bailiff CHAPTER IIL PHONOGRAPHIC REPORTERS. § 268. Phonographic reporters for supreme court, § 272. Oath of office. where provided for. § 273. Reports prima facie correct statements. § 269. Phonographic reporters for superior § 274. Fees. courts, their appointment, and duties. § 274a. Transcribing of opinions and instructions, § 270. Qualifications and test of competency. a county charge. Pro tempore reporters. § 274b. Fees and compensation of phonographic § 271. Attention to duties. Reporters pro tem- reporter. pore. § 268. Phonographic reporters for supreme court, where provided for. Phonographic reporters for the supreme court are provided for in part three of the Political Code. §269 PHONOGRAPHIC REPORTERS. 124 Phonographic reporters of supreme court. 1. Salary. See Pol. Code, § 739. 2. Appointment. See Pol. Code, § 769. S. Duty. See Pol. Code, § 770. Legislation § 268. Added by Code Amdts. 18SO, p. 53, in amending Part I. § 269. Phonographic reporters for superior courts, their appointment, and duties. The judge or judges of any superior court in the state may appoint a competent phonographic reporter, or as many such reporters as there are judges, to be known as official reporter or reporters of such court, and to hold office during the pleasure of the judge or judges appointing them. Such reporter, or any one of them, where there are two or more, must, at the request of either party, or of the court in a civil" action or proceeding, and on the order of the court, the district attorney, or the attorney for defend- ant in a criminal action or proceeding, take down in shorthand all the testi- mony, the objections made, the rulings of the court, the exceptions taken, all arraignments, pleas and sentences of defendants in criminal cases, the arguments of the prosecuting attorney to the jury, and all statements and remarks made and oral instructions given by the judge ; and if directed by the court, or requested by either party, must, within such reasonable time after the trial of such case as the court may designate, write out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or by typewriter, or other printing-machine, and certify to the same as being correctly reported and transcribed, and when directed by the court, file the same with the clerk of the court. Legislation § 269. 1. Enacted March 11, 1873 (based on Stats. 1865-66, p. 232), and then read: "The judge of each judicial district, and each county judge, may appoint a competent short- hand reporter, to hold office during the pleasure of the judge, and who must, at the request of either party, or in the discretion of the court, in a civil action or proceeding, or criminal action or proceeding, on the order of the court, the dis- trict attorney, or the counsel for the defendant, take down in shorthand all the testimony, the rul- ings of the court, the exceptions taken, and oral instructions given, and must, within five days, or such reasonable time after the trial of such case as the court may designate, write out the same in plain, legible, longhand writing, verify and file it, together with the original shorthand writing, with the clerk of the court in which the case was tried. The reporter of the county court of the city and county of San Francisco is ex of- ficio reporter of the probate and municipal crim- inal court of such city and county." 2. Amended by Code Amdts. 1873-74, p. 288, to read: "The judge of each court of record may appoint a competent shorthand reporter, to hold office during the pleasure of the judge. Such re- porter must, at the request of either party, or of the court, in a civil action or proceeding, and on the order of the court, the district attorney, or the counsel for the defendant in a criminal action or proceeding, take down in shorthand all the testimony, the objections made, the rulings of the court, the exceptions taken, and oral instructions given, and if directed by the court, or requested by either party, must within such reasonable time after the trial of such case as the court may designate, write out the same in plain legible longhand, and verify and file it with the clerk of the court in which the case was tried." 3. Amended by Code Amdts. 1880, p. 53, to read: "The judge or judges of any superior court in the state may appoint a competent phono- graphic reporter, or as many such reporters as there are judges, to be known as official reporter or reporters of such court, and to hold office dur- ing the pleasure of the judge or judges appoint- ing them. Such reporter, or any one of them, where there are two or more, shall, at the request of either party, or of the court in a civil action or proceeding, and on the order of the court, the district attorney, or the attorney for defendant in a criminal action or proceeding, take down in shorthand all the testimony, the objections made, the 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 reasonable time after the trial of such case as the court may designate, write out the same in plain, legible longhand, and verify and file it with the clerk of the court in which the case was tried." 4. Amendment by Stats. 1901, p. 122; un- constitutional. See note ante, § 5. 5. Amended by stats. 1903, p. 234. Transcription of notes. The reporter is not required by this section to transcribe or file his notes, until his proper fees there- for have been paid or tendered (Eichards V. Superior Court, 145 Cal. 38; 78 Pac. 244) ; but on an appeal taken under §§ 953a and 953b, post, it is his duty to make the transcript within twenty days after notice of appeal has been given, and to file such transcript with the clerk; he cannot refuse to file it because his fees are unpaid, as he has recourse against the sureties on the undertaking given to secure the payment of such fees. Gjurich v. Fieg, 160 Cal. 331; 116 Pac. 745. The oflicial stenographer need not report the arguments of counsel. Kover v. Willmon, 12 Cal. App. 87; 106 Pac. 599. Stenographer for grand jury. The grand jury is authorized to appoint, as steno- graphic reporter, any competent sten- ographer; the one selected need not be the official reporter of the superior court, ap- pointed under this section and §§ 270, 271, post. People v. Delhantie, 163 Cal. 461; 125 Pac. 1066. CODE COMMISSIONEKS' NOTE. Stats. 1866, p. 232. See Stats. 1871-72, p. 400, "An act pro-" viding for the appointment of a reporter in the first judicial district of this state," approved March 16, 1872. 125 QUALIFICATIONS AND TEST OF COMPETENCY. §§ 270, 271 § 270. Qualifications and test of competency. Pro tempore reporters. No person shall be appointed to the position 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 the bar so designated shall, upon the request of the judge or judges of said court, ex- amine 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 examined must write in the presence of said committee at the rate of at least one hundred and fifty words per minute, for five con- secutive minutes, upon matter not previously written by or known to him, immediately read the same back to the committee, and transcribe the same into longhand writing, plainly and with accuracy. If he pass such test satis- factorily, the committee shall furnish 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. No official reporter of any court or official reporter pro tempore shall be competent to act as official reporter in any court of the state who shall have failed and neglected to transcribe any notes in a criminal proceeding or action on appeal and which notes are required by law to be by him transcribed until he shall have fully completed and filed all transcription of his notes in any criminal case on appeal required by law to be by him transcribed. Legislation § 270. 1. Added by Code Amdts. 3. Amended by Code Amdts. 1880, p. 53, and 1873-74, p. 402, as § 272, and then read: "No renumbered § 270, and then read as amendment person shall be appointed to, or be retained in of 1909, except for the addition made in that the position of official reporter of any court in year. this state, without being first examined as to his 3. Amended by Stats. 1909, c. 708, adding competency by at least three members of the bar the final sentence, beginning "No ofiicial re- practicing in said court, such members to be porter." designated by the judge of said court. The com- The original § 270 (now § 273, post) made the mittee so selected shall, upon the request of the transcript of the evidence by the reporter prima judge of said court, examine any person as to his facie evidence of its correctness, qualifications whom said judge may wish to ap- point or retain as official reporter, and no person Qualifications of reporter. Tliis section shall be appointed to, or retained in such posi- relates exclusively to the official reporter tion. whose qualifications said committee shall _» . i. i i, t i.- „ not have reported favorably. The test of compe- of superior courts, and has no application tency before such committee shall be as follows: to reporters appointed by magistrates at The party examined must write, in the presence preliminary examination; in that case the of said committee, at the rate of at least one hun- '■ , r . • xi. i. u i, ,„ j. j. dred and forty words per minute for five con- onlj provision IS, that he be competent, secutive minutes, upon matter not previously People V. Mclntyre, 127 Cal. 423; 59 Pac. written by him, and transcribe the same into 779. People V. Nunley, 142 Cal. 441; 76 longhand writing with accuracy. If he pass said -p'\n 4.=! test satisfactorily, the committee shall furnish J: ac. 'to. him with a written certificate of that fact, signed Stenographer for grand jury. See note by at least a majority of the members of the ante § 269. committee, which certificate shall be filed in the ' records of the court." § 271. Attention to duties. Reporters pro tempore. The official reporter of any superior court shall attend to the duties of his office in person, except when excused for good and sufficient reason by order of the court, which order shall be entered upon the minutes of the court. Employment in his professional capacity elsewhere shall not be deemed a good and sufficient reason for such excuse. When the official reporter of any court has been excused in the manner provided in this section, the court may appoint an official reporter pro tempore, who shall perform the same duties and receive the same compensation during the term of his employment as the official reporter. §§ 272-274 PHONOGRAPHIC REPORTERS. 126 Legislation 8 271. 1. Added by Code Amdts. 1873-74, p. 401, as § 273. 3. Amended bv Code Amdts. 1880, p. 54, and (1) renumbered § 271 ; (2) in the first line.the words "superior court shall" changed from "dis- trict court must"; (3) the article "a" omitted before "good and"; (4) the words "judge of said" omitted before "court may appoint"; and (5) the phraseology after the word "compensa- tion" changed from "as the official reporter, and whose report shall have the same legal effect as the report of the official reporter." The original § 271 (now § 274, post) was based on Stats. 1868, p. 45, and provided for coinpensa- tion of reporters, and was repealed by Code Amdts. 1880, p. 21, in amending Part I. Duties of reporter. The only duties de- volving upon an official reporter are pre- scribed by this section. People v. Lon Me, 49 Cal. 353; Charnock v. Eose, 70 Cal. 189; llPae. 625. Application of section. See note ante, §270. § 272. Oath of ofl&ce. The official reporter of any court, or official re- porter pro tempore, shall, before entering upon the duties of his office, take and subscribe the constitutional oath of office. Application of section. This section has Legislation § 272. 1. Added bv Code Amdts. 1S73-74, p. 403, as § 274, and then read: "The official reporter of any court, or official reporter pro tern., must, before entering on the duties of his office, take and subscribe the following oath: 'I do swear (or affirm) that I will support the constitution of the United States and the consti- tution of the state of California, and that I will faithfully discharge the duties of the office of offi- cial reporter (or official reporter pro tem.) of the court, according to the best of my ability.' " 3. Amended by Code Amdts. 1880, p. 54, and renumbered § 272. The original § 272 (now § 270, ante) provided for examination of official reporters. no application to a reporter appointed by a magistrate at a preliminary examination. People V. Nunley, 142 Cal. 441; 76 Pac. 45. Oath of office. The official reporter is an officer of the court, and is required to take the oath of office (Ex parte Eeis, 64 Cal. 233; 30 Pac. 806); which oath is for all cases, and not for a particular case, in which he may take, transcribe, and certify the testimony and proceedings. Keid v. Eeid, 73 Cal. 206; 14 Pac. 781. § 273. Reports prima facie correct statements. The report of the official reporter, or official reporter pro tempore, of any court, duly appointed and sworn, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case, is prima facie evidence of such testi- mony and proceedings. prima facie evidence in felony cases, in certain counties; it was, however, held that such notes were only prima facie evidence in the court where taken, and could not be considered in the supreme court. People V. Woods, 43 Cal. 176; People v. Armstrong, 44 Cal. 326. In criminal actions, a tran- script of the reporter's notes, certified and filed as provided by law for the authenti- cation of the testimony of witnesses at pre- liminary examinations, is placed upon the same footing as depositions, and is admis- sible in like eases. People v. Grundell, 75 Cal. 301; 17 Pac. 214; Mattingly v. Nich- ols, 133 Cal. 332; 65 Pac. 748. In the settlement of a bill of exceptions, the judge may insert therein the instructions to the jury as actually given by him, if the re- porter's transcription thereof is incorrect. as such transcription is only prima facie evidence. People v. Cox, 76 Cal. 281; 18 Pac. 332; People v. Leary, 105 Cal. 486; 39 Pac. 24. No further identification is re- quired, where it is admitted that the tran- script contains a correct statement of the testimony. Carpenter v. Ashley, 15 Cal. App. 461; 115 Pac. 268. CODE COMMISSIONEES' NOTE. Stats. 1866, p. 232. Legislation § 273. 1. Enacted March 11, 1872, as § 270 (based on Stats. 1865-66, p. 232), and read: "His report, written out in longhand 'writ- ing, is prima facie a correct statement of the evidence and proceedings." 3. Amended by Code Amdts. 1873-74, p. 400, to read: "The report of the official reporter, when appointed and acting in accordance with the provisions of sections two hundred and seventy- two and two hundred and seventy-three of this code, and not otherwise, written out in longhand writing, and certified as being a correct tran- script of the testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings." 3. Amended by Code Amdts. 1880, p. 54, re- numbered § 273, and then read: "The report of the official reporter, or official reporter pro tem- pore, of any court, duly appointed and sworn, when written out in longhand writing and certi- fied as being a correct transcript of the testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and pro- ceedings." 4. Amendment by Stats. 1901, p. 123; un- constitutional. See note ante, § 5. 5. Amended by Stats. 1903, p. 234. Transcription is evidence. Prior to the amendment of this section, the reporter's notes were not prima facie evidence of the testimony, but only "prima facie a correct statement" of the evidence. Eeid v. Eeid, 73 Cal. 206; 14 Pac. 781; Estate of Benton, 131 Cal. 472; 63 Pac. 775. Before the en- actment of the code, by Stats. 1867-68, p. 425, the reporter's notes were made § 274. Fees. For his services, the official reporter shall receive the fol- lowing fees, except in counties where a statute provides otherwise : 127 FEES. §274 For reporting testimony and proceedings, ten dollars per day, which amount, when more than one case is reported in one day, must be appor- tioned by the court between the several eases ; For transcription, for one copy, twenty cents per hundred words ; for two copies made at one time, fifteen cents each per hundred words; for three copies made at one time, eleven cents each per hundred words; for four copies made at one time, nine cents each per hundred words ; and for five or more copies made at one time, eight cents each per hundred words. In criminal cases, the fees for reporting and for transcripts ordered by the court to be made must be paid out of the county treasury upon the order of the court; provided, that when there is no official reporter in attendance, and a reporter pro tempore is appointed, his reasonable expenses for travel- ing and detention must be fixed and allowed by the court and paid in like manner. In civil cases, the fees for reporting and for transcripts ordered by the court to be made must be paid by the parties in equal proportions, and either party may, at his option, pay the whole thereof; and, in either case, all amounts so paid by the party to whom costs are awarded must be taxed as costs in the case. The fees for transcripts and copies ordered by the parties must be paid by the party ordering the same. No reporter must be required to perform any service in a civil case until his fees therefor have been paid to him or deposited with the clerk of the court. which have accrued up to the time of the dis- charge of the jury. In cases where a transcript has been ordered by the court, the expense thereof must be paid equally by the respective parties to the action, or either of them, in the discretion of the court; and no verdict or judg- ment can be entered up, except the court shall otherwise order, until the reporter's fees are paid, or a sum equivalent thereto deposited with the clerk of the court. In no case shall a tran- script be paid for, unless ordered by either the plaintiff or defendant, or by the court, nor shall the reporter be required, in any civil case, to transcribe his notes, until the compensation therefor be tendered him, or deposited in court for that purpose. The party ordering the re- porter to transcribe any portion of the testimony or proceedings, shall pay the fees of the reporter therefor. In criminal cases, when the testimony has been taken down upon the order of the court, the compensation of the reporter must be fixed by the court, and paid out of the treasury of the county in which the case is tried, upon the order of the court." 3. Amended by Code Amdts. 1880, p. 54, renumbered § 274, and then read: "The official reporter shall receive, as compensation for his services in civil actions and proceedings for tak- ing notes, a sum, to be fixed by the court or a judge thereof, not exceeding ten dollars per day, and for transcription a sum to be in like manner fixed not exceeding twenty cents per hundred words; provided, that when said re- porter performs services in taking notes in more than one cause on the same day, the court or judge thereof shall apportion to per diem allowed between the several actions or proceedings in which such notes are taken. The shorthand notes so taken shall immediately after the cause is submitted be filed with the clerk, but for the purpose of writing out said notes the re- porter may withdraw the same for a reasonable time. The reporter's fees for taking notes in civil cases shall be paid by the party in whose favor judgment is rendered, and shall be taxed up by the clerk of the court as costs against the party against whom judgment is rendered. In case of the failure of a jury to agree, the- plaintiff must pay the reporter's fees for timo- Legislation S 274. 1. Enacted March 11, 1873. as § 271 (based on Stats. 1867-68, p. 455), and then read: "He shall receive, as compensation for his services, not exceeding ten dollars per day for taking notes, and not exceeding twenty cents per folio for transcription, to be paid by the party in whose favor judgment is rendered, and be taxed up by the clerk of the court as costs against the party against whom judgment is rendered. In case of failure of a jury to agree, the plaintiff must pay the reporter's fees accrued to that time. In cases where a tran- script may be required by the court, the expense thereof must be paid equally by the respective parties to the action, or either of them, in the discretion of the court; and no verdict or judg- ment can be entered up, except the court shall otherwise order, until the reporter's fees are paid, or a sum equivalent thereto deposited with the clerk of the court. In no case shall the tran- script be paid for unless specially ordered by either plaintiff or defendant, or by the court; nor shall the reporter be required, in any civil case, to transcribe his notes until the compensa- tion per folio therefor be tendered to him or de- posited in court for that purpose. In criminal cases, when the testimony has been taken down by order of the court, the compensation of the reporter must be fixed by the court and paid out of the treasury of the county in which the case is tried, upon the order of the court." 2. Amended by Code Amdts. 1873-74, p. 400, to read: "The official reporter shall receive as compensation for his services in civil proceed- ings, not exceeding ten dollars per day for tak- ing notes, and not exceedins twenty cents per hundred words for transcription. The short- hand notes so taken sh.nll, immediately after the cause is submitted, be filed with the clerk; but, for the purpose of writing out said notes, the reporter may withdraw the same for a reason- able time. The reporter's fees for taking notes in civil cases shall be paid by the party in whose favor judgment is rendered, and shall be taxed up by the clerk of the court as costs against the party against whom judgment is rendered. In case of the failure of a jury to agree, the plaintiff must pay the reporter's fees, for per diem, and for transcription ordered by plaintiff, 274 PHONOGRAPHIC REPORTERS. 128 employed, and for transcription ordered by plain- tiff which have accrued up to the time of the discharge of the jury. In cases where a tran- script has been ordered by the court, the fees for transcription must be paid by the respective parties to the action in equal proportions, or by such of them and in such proportions as the court, in its discretion, may order; and no ver- dict or judgment shall be entered up, except the court shall otherwise order, until the reporter's fees are paid, or a sum equivalent thereto de- posited with the clerk of the court therefor. In no case shall a transcript be paid for unless ordered either by the plaintiff or defendant, or by the court; nor shall the reporter be required in any civil case to transcribe his notes until the fees therefor be tendered him, or a sufficient amount to cover the same be deposited in court for that purpose. The party ordering the re- porter to transcribe any portion of the testimony or proceedings, must pay the fees of the rejjorter therefor. In criminal cases, when the testimony has been taken down or transcribed upon the order of the court, the fees of the reporter shall be certified by the court, and paid out of the treasury of the county, or city and county, in which the case is tried, upon the order of the court." 4. Amended by Stats. 1885, p. 218, to read: "The official reporter shall receive as compensa- tion 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 manner and at the same time as the sala- ries of county officers; provided, that said monthly salary for each superior court, or de- partment thereof, shall not exceed the follow- ing maximum: In counties having a population of one hundred thousand and over, three hun- dred dollars; in counties having a population less than one hundred thousand and exceeding fifty thousand, two hundred and seventy-five dol- lars; in counties having a population less than fifty thousand and exceeding thirty thousand, two hundred and fifty dollars; in counties hav- ing a population less than thirty thousand and exceeding twenty thousand, two hundred and twenty-five dollars ; in counties having a popula- tion less than twenty 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 hundred and seventy-£ve 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 popula- tion less than seven thousand five hundred and exceeding five thousand, one hundred dollars; and in counties having a population less than five thousand, seventy-five dollars ; and, further provided, that where both parties to a civil action, or either, require the testimony 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 com- pensation for the transcription of testimony, to be paid out of the county, or city and county, treasury, upon the order of the judge. In civil cases in which tlie testimony is taken down by the official reporter, each party shall pay a per diem of two dollars and fifty cents before judg- ment or verdict therein is entered ; and where the testimony is transcribed, the party or par- ties ordering it shall pay ten cents per folio for such transcription on delivery thereof; 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 as costs in the case. Where there is no regular official reporter, and one is appointed tempo- rarily by the court, he shall receive for his ser- vices and expenses of attendance, in lieu of the salary provided in this section, such compensa- tion as the court may deem reasonable ; to be 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." 5. Amendment by Stats. 1901, p. 123; un- constitutional. See note ante, § 5. 6. Amended by Stats. 1903, p. 234. Compensation of reporters. The amend- ment of 1885 provided that the compensa- tion of a reporter should be by monthly salary, fixed by the judge; but this was declared unconstitutional, as imposing legislative functions upon the judiciary. Smith V. Strother, 68 Cal. 194; 8 Pac. 852; McAllister v. Hamlin, 83 Cal. 361; 23 Pac. 357; Dwyer v. Parker, 115 Cal. 544; 47 Pac. 372; Taylor v. McConigle, 120 Cal. 123; 52 Pac. 159; Los Angeles v. Pomeroy, 124 Cal. 597; 57 Pac. 585; Stevens v. Truman, 127 Cal. 155; 59 Pac. 397. The provision in the County Government Act, fixing the salary of ofllcial reporters, is invalid, for the reason that it is not germane to the title of the act, which was to create a "uniform system of county government." Pratt v. Browne, 135 Cal. 649; 67 Pac. 1082. OflBcial reporters. The term "official re- porters" means, only reporters appointed by the superior court, and acting under their oath of office. Fox v. Lindley, 57 Cal. 650. Transcription ordered by court. Where the transcript is ordered by the court, it must be paid for by the losing party, and becomes a necessary part of the disburse- ments of the successful party. Barkly v. Copeland, 86 Cal. 483; 25 Pac. 1, 405. Money paid to the reporter for a transcript of the evidence is not recoverable as costs, unless made under an order directing the transcription. Blair v. Brownstone Oil etc. Co., 20 Cal. App. 316; 128 Pac. 1022. Transcription in criminal cases. The compensation for transcribing in criminal actions is to be fixed by the court, and is a charge against the county. Ex parte Reis, 64 Cal. 233; 30 Pac. 806; Boys' and Girls' Aid Society v. Eeis, 71 Cal. 627; 12 Pac. 796; McAllister v. Hamlin, 83 Cal. 361; 23 Pac. 357; Ex parte Widber, 91 Cal. 367; 27 Pac. 733. The superior court has power to fix and order paid the compensation of a reporter in criminal actions (Ex parte Eeis, 64 Cal. 233; 30 Pac. 806), and to compel the treasurer, by mandamus, to pay the same, wherever funds are applicable to the pay- ment thereof (Stevens v. Truman, 127 Cal. 155; 59 Pac. 397; Ex parte Eeis, 64 Cal. 233; 30 Pac. 806; Boys' and Girls' Aid Society v. Eeis, 71 Cal. 627; 12 Pac. 796; Ex parte Widber, 91 Cal. 367; 27 Pac. 733) ; and if, in a proper case, the treasurer re- fuses to pay, he is guilty of contempt (Ex parte Truman, 124 Cal. 387; 57 Pac. 223); but this section does not authorize the pay- . ment of traveling expenses of the reporter. 129 TRANSCRIBING OP OPINIONS AND INSTRUCTIONS. §^ 274a, 274b Irrgang v. Ott, 9 Cal. App. 440; 99 Pac. Co., 20 Cal. App. 316; 128 Pac. 1022); nor 528. A statute authorizing a stenographer, has the court power to tax, as costs, fees in counties of the twenty-seventh class, to for the transcription of testimony, where be appointed by the judge of the superior the judgment was reversed on appeal upon court to report the proceedings at prelim- the judgment roll, without such transcrip- inary examinations and coroner's inquests, tion having been used, and where the ap- at a salary of one hundred dollars per peal from the order denying a motion for month, to be paid out of the county treas- a new trial was not perfected. Dank of ury, is unconstitutional. Payne v. Murphy, "Woodland v. Hiatt, 59 Cal. 580. 18 Cal. App. 446; 123 Pac. 350. The power Fee for transcription. See note ante, of the legislature to classify counties by § 269. population is a power to be exercised for Per diem of reporters. The court has no the limited purpose of enabling the com- power, by rule, to require the per diem of pensation of the various officers to be fixed reporters to be paid, one half by each of and adjusted. Id. the parties, before the witnesses are exam- Transcription ordered by district attor- ined (Meacham v. Bear Valley Irrigation ney. This section is not a limitation on Co., 145 Cal. 606; 68 L. R. A. 600; 79 Pac. the power of the district attorney to order 281); nor, prior to the amendment of 1903, a transcript of the testimony in criminal where the reporter voluntarily took the tes- cases at the expense of the county. Yolo timony without requiring a deposit, had County v. Joyce, 156 Cal. 429; 105 Pac. 125. the judge power, after judgment entered, Transcription ordered by party. Where to refuse to settle the case until the re- the transcription is ordered by a party, and porter's fees were paid. James v, McCann, furnished at an agreed rate of compensa- 93 Cal. 513; 29 Pac. 49. tion, it cannot be taxed as costs (Los cODE COIMMISSIONEES' NOTE. Stats. 1868. Angeles v. Pomeroy, 124 Cal. o97; 57 Pac. p. 455. 585; and see Blair v. Brownstone Oil etc. § 274a. Transcribing of opinions and instructions, a county charge. Judges of the superior court may have any opinion given or rendered by such judge in the trial of any action or proceeding, pending in such court, or any instructions to be given by such court to the jury, or any necessary order, petition, citation, commitment or judgment in any insanity proceed- ing, probate proceeding, proceeding concerning new or additional bonds of county officials, or juvenile court proceeding, taken down in shorthand and transcribed by the official reporter of such court ; but if there be no official reporter for such court, then by any competent stenographer or typewriter, (he cost thereof to be a legal charge against the county, payable out of the general fund in the county treasury in the same manner as any other claims against the county, when properly approved by the said judge so ordering the same. Legislation § 274a. 1. Added by Stats. 1907, citation, commitment or judgment in any insanity p. 15, proceeding, probate proceeding, proceeding con- 3. Amended by Stats. 1911, p. 499, adding cerning new or additional bonds of county offi- in the first clause, after "given by such court to cials, or juvenile court proceeding." the jury," "or any necessary order, petition, § 274b. Fees and compensation of phonographic reporter. The phono- graphic reporter shall receive for making an original and three carbon copies of the portion of his notes ordered transcribed, or transcribed in any criminal case after sentence, the sum of thirty cents per folio; provided, however, that he shall receive no compensation for transcribing any notes unless the same shall have been transcribed by him within the time provided by law. Legislation § 274b. Added by Stats. 1909, e. 708. 1 Fair.— 9 §275 ATTORNEYS AND COUNSELORS AT LAW. 130 TITLE V. PERSONS SPECIALLY INVESTED WITH MINISTERIAL POWERS RE- LATING TO COURTS OF JUSTICE. Chapter I. Attorneys and Counselors at Law. §§ 275-299. H. Other Persons Invested with Such Powers, § 304. CHAPTER L ATTORNEYS AND COUNSELORS AT LAW. § 275. Who maybe admitted as attorneys. § 276. Qualifications. § 277. Certificate of admission and license. § 278. Oath. § 279. Attorneys of other states. § 280. Roll of attorneys. § 280a. Effect of diploma granted by Hastings College of the Law. § 280b. Admission to practice law on diplomas from certain universities. § 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. Causes for which court may remove at- torney. 288. Conviction of felony. 289. Proceedings for removal or suspension. 290. Accusation. 291. Verification. 292. Citation of accused by publication. 293. Appearance. 294. Objections to accusation. 295. Demurrer. 296. Answer. 297. Trial. 298. Reference to take depositions. 299. Judgment. See sections immediately § 275. Who may be admitted as attorneys. Any citizen or person resi- dent of this state, who has bona fide declared his or her intention 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 qualifications of learning and ability, is entitled to admission as attorney and counselor 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. entitled to be admitted as attorneys, upon the same terms as males. Foltz v. lioge, 54 Cal. 28. Eight to practice law. The right to practice law is not a natural or a constitu- tional right, but a statutory privilege, subject to legislative control (Application of Guerrero, 69 Cal. 88; 10 Pac. 261; Ex parte Eraser, 54 Cal. 94; Ex parte John- Bon, 62 Cal. 263) ; neither is it a contract, nor a property right, within the meaning of the constitution. Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241; 85 Am. Dec. 62. Admission to the bar. The authority to admit to practice in all courts of the state is placed wholly within the jurisdiction of the district courts of appeal, and the su- preme court has no authority to admit attorneys to practice. Application of Mock, 146 Cal. 378; 80 Pac. 64. The terms "at- torney," "counselor," "attorney at law," are synonymous. Pittman v. Carstenbrook, 11 Cal. App. 224; 104 Pac. 699. Licenses granted to attorneys, under this section and § 276, post, are not affected by the failure of the legislature to define the qual- ifications that they must possess. (Obiter.) Ex parte McManus, 151 Cal. 331; 90 Pac. 702. Attorneys. 1. Admission of following. 2. Judges must have been admitted to prac- tice. See ante, §§ 156, 157. 3. Kemoval of. See post, § 287. Judicial and ministerial officers. 1. Not to practice. See Pol. Code, §4121; ante, § 171. 2. Nor to have a partner. Ante, § 172. Legislation § 275. 1. Enacted March 11, 1873 (hased on Stats. 1851, p. 48), and then read: "Any white male citizen, or white male person, resident of this state, who has bona fide de- clared his intention to become a citizen in the manner required by law, of the age of twenty- one years, of good moral character, and who pos- sesses the necessary qualifications of learning and ability, is entitled to admission as attorney and counselor in all courts of this state." a. Amended by Code Amdts. 1877-78, p. 99, to read as at present, except that the last sen- tence was not then added. 3. Amended by Code Amdts. 1880, p. 55, adding the last sentence. Citizenship. An alien, by filing his dec- laration of intention, does not thereby be- come a citizen (Orosco v. Gagliardo, 22 Cal. 83); but a bona fide declaration of intention entitles a person to be admitted to practice law (Alpers v. Hunt, 86 Cal. 78; 21 Am. St. Eep. 17; 9 L. R. A. 483; 24 Pac. 846), provided such person is eligible to citizenship. In re Hong Yen Chang, 84 Cal. 163; 24 Pac. 156. Pemales are now 131 QUALIFICATIONS CERTIFICATE OF ADMISSION AND LICENSE. §§ 276, 277 Residence as affecting right to admission to bar. See note 17 Ann. Cas. 878. CODE COMMISSIONERS' NOTE. Stats. 1851, p. 48. An attorney at law is not a person hold- ing an oiBce of public trust, within the prohib- itory clause of § 3, art. ii, of the constitution. The right to practice law is a statutory privilege, subject' to the control of the legislature. The right to practice law is not "property" nor a "contract,"' within the meaning of the constitu- tion. The state may e.xclude from its courts those who are disloyal to the Federal as well as to the state government. An oath may be re- quired by the legislature of the state from an at- torney purging himself of certain imputed crimes. See Cohen v. Wright, 2'2 Cal. 293 ; Kx parte Yale, 24 Cal. 241 ; 85 Am. Dec. 62. § 276. Qualifications. Every applicant for admission as an attorney and counselor must produce satisfactory testimonials of a good moral cliaracter and undergo a strict examination in open court as to his qualifications by the justices of one of the district courts of appeal. Examination of candidates. See supreme court rule 1. Legislation § 276. 1. Enacted March 11, 1873, and then read: "Every applicant for admission as attorney and counselor must produce satis- factory testimonials of good moral character, and undergo a strict examination, in open court, as to his qualifications, by the justices of the su- preme court." 3. Amended by Code Amdts. 1873-74, (1) p. 404 (March 18, 1874), (a) adding the article "an" before "attorney," in the first line, (b) omitting the commas before and after the words "in open court," and (c) adding "provided, that the several county and district courts of this state may admit applicants to practice as attor- neys and counselors in their respective courts" ; (2) again amended, p. 289 (March 24, 1874), (a) omitting the article "an" before "attorney," (b) adding the words "except as provided in sec- tion two hundred and seventy-nine" before the word "undergo," and (c) striking out the proviso; (3) again amended, p. 404 (March 30, 1874), making the section read exactly as amended March 18, 1874. 3. Amended by Code Amdts. 1S80, p. 55, (a) omitting the commas before and after the words "in open court," (b) adding, after "su- preme court," the words "or by the justices sitting _and holding one of the departments thereof," and (c) making the proviso read, "pro- vided, that the several superior courts of this state may admit applicants to practice as attor- neys and counselors in their respective courts, but not elsewhere, upon strict examination in open court, and not otherwise, and upon satis- factory testimonials of good moral character." 4. Amended by Stats. 1895, p. 56, (1) add- ing "a" before "good moral"; (2) striking out the proviso added in 1880, and substituting therefor, "or by not less than three of the su- preme court commissioners, to be designated ana appointed by the chief justice of the supreme court to conduct publicly the examination; such commissioners to report the results of the ex- amination to the supreme court for final action.'* 5. Amended by Stats. 1905, p. 5. Application of section. See note ante, § 275. Legislative or judicial power to determine qual- ifications for admission to bar. See note 10 Ann. Cas. 198. CODE COMMISSIONERS' NOTE. See note to preceding section. § 277. Certificate of admission and license. If, upon examination, he is found qualified, the district court of appeal, before which he is examined, shall admit him as an attorney and counselor in all the courts of this state, and shall direct an order to be entered to that effect 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. Every person admitted to practice by a district court of appeal, either upon examination, or upon the production of a license from another state, as provided in section two hundred and seventy-nine of this code, may practice as an attorney in all of the courts of this state, including the supreme court ; and every person now entitled to practice in the supreme court of this state may practice as an attorney in any district court of appeal. Disbarment. See post, §§ 287 et seq. Legislation § 277. 1. Enacted March 11, 1873, and tlun read: "If, upon examination, he is found qualified, the court must admit him as at- torney and counselor in all the courts of this state, and shall direct an order to be entered to that elTect upon its records, and that a certifi- cate of such record be given to him by the clerk of the court, which certificate is his license." 3. Amended by Code Amdts. 1880. p. 56, (1) changing the words between "qualified" and "and counselor" to read, "the supreme court, or department thereof before which he is examined, shall admit him as an attorney," and (2) chan- ging the word "is," in last line, to "shall be." 3. Amended by Stats. 1905, p. 5. Admission and license. The district courts of appeal have exclusive power to admit attorneys of other states and coun- tries to practice in all the courts of this state. Application of Mock, 146 Cal. 378: 80 Pac. 64. CODE COMMISSIONERS' NOTE. Section 4 of the Statute of 1861, p. 40, was as follows: "Sec. 4. The district court and cou:ity courts of this state are authorized to admit, as attorney and counselor in their respective courts, any white male citizen, or white male person, who has bona fide declared his intention to become a citizen, of the age of twenty-one years, and of good moral character, who possesses the requisite qualifica- tions, on similar testimonials and like examina- tions as are required by the preceding section for admission by the supreme court, and may direct their clerks to give a certificate of such admis- sion, which certificate shall be a license to prac- tice in such courts." §§278,279 ATTORNEYS AND COUNSELORS AT LAW. 132 The intended effect of the omission of this sec- tion from the code was to prevent district and county couits from admitting persons as attorneys and counselors in those courts. The supreme court is alone vested vifith power to admit attorneys and counselors to practice in any court of this state. 58 Am. Rep. 545; 10 Pac. 47); and by this section it is incumbent upon an attorney to take an oath to support the constitution of the United States and of this state. Alpers V. Hunt, 86 Cal. 78; 21 Am. St. Rep. 17; 9 L. R. A. 483; 24 Pac. 846; Sears v. Starbird, 75 Cal. 91; 7 Am. St. Rep. 123; 16 Pac. 53i. The payment of the Federal license tax does not entitle an attorney to practice without the oath prescribed by statute. Cohen v. Wright, 22 Cal. 293. CODE COIVIMISSIONERS' NOTE. Cohen v. Wright. 22 Cal. 293; Ex parte Yale, 24 Cal. 241; 85 Am. Dec. 62. § 278. Oath. Every person on his admission must take an oath to sup- port the constitution of the United States and the constitution of the state of California, and to faithfully discharge the duties of an attorney and counselor at law to the best of his knowledge and ability. A certificate of such oath must be indorsed upon the license. Duties. See post, § 282. Legislation § 278. 1. Enacted March 11, 1873, and tlien read: "Every person, on his admission, must take an oath to support the constitution of the United States and of this state, and to discharge the duties of attorney and counselor to the best of his knowledge and ability. A certificate of such oath must be indorsed on the 2. Amended by Code Amdts. 1880, p. 56. Oath of attorney. The taking of an oath is a prerequisite for admission to practice as an attorney and counselor at law, and a violation of such oath is cause for disbar- ment (Disbarment of Cowdery, 69 Cal. 32; § 279. Attorneys of other states. 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 jurisprudence, may be admitted to practice in all the courts of this state, by any district court of appeal, 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. mission from another state. In re Hong Yen Chang, 84 Cal. 163; 24 Pac. 156. A practitioner from another state may be ex- amined as to his qualifications, although he has been admitted to practice in the su- preme court of the United States, or in the courts of a sister state. Ex parte Snelling, 44 Cal. 553. As a matter of comity, an attorney admitted to practice in another state may be, by the supreme court, per- mitted to present arguments to it in a par- ticular case, although it has no power to admit him to practice (Application of Mock, 146 Cal. 378; 80 Pac. 64); and a lawyer, duly admitted to practice in an- other state, who has been accustomed to practice here as a member of the bar, is a de facto officer of the court, and the valid- ity of his acts as such cannot be collat- erally attacked. Garrison v. McGowan, 48 Cal. 592. Evidence of good moral character. Al- though an attorney was admitted to prac- tice in another state, yet he must furnish to the court, upon his application for ad- mission to practice in this state, satisfac- tory evidence of his good moral character. Case of Lowenthal,6lCal. 122. CODE COMMISSIONERS' NOTE. [The entire opinion in the case of Ex parte Snelling, 44 Cal. 553.] "State" and "United States," defined. Ante, § 17, subd. 7. Legislation § 279. 1. Enacted March 11, 1873, and then read: "Every white male citizen of the United States, who has been admitted to practice law in the highest court of a sister state, may be admitted to practice in the courts of this state, upon the production of his license and satisfactory evidence of good moral charac- ter; but the court may examine the applicant as to his qualifications." 3. Amended by Code Amdts. 1877-78, p. 99, to read: "Every citizen of the United States who has been admitted to practice law in the highest court of a sister state, may be admitted to practice in the courts of this state, upon the production of their license, and satisfactory evi- dence of good moral character, but the court may examine the applicant as to their qualifi- cations." 3. Amended by Code Amdts. 1880, p. 56, to read as at present, except that (1) commas were not used before and after the words "bona fide," nor (2) the word "all," before "the courts," nor (3) the words "by anv district court of appeal." 4. Amended by Stats. 1905, p. 6. Admission of attorneys from other juris- dictions. The admission of an attorney, duly admitted to practice in another state, may be made on motion (Case of Lowen- thal, 61 Cal. 122); but his personal pres- ence is necessary in court. Ex parte Snelling, 44 Cal. 553. A Mongolian, not being entitled to become a naturalized citizen under the laws of the United States, cannot be admitted to practice in this state, although holding a certificate of ad- 133 ROLL OF ATTORNEYS — DUTIES. §§280-282 § 280. Roll of attorneys. Every clerk of a district court of appeal shall keep a roll of attorneys and counselors admitted to practice by the court of which he is clerk, which roll must be signed by the person admitted before he receives his license. Every clerk shall, each month, certify to the clerk of the supreme court a list of the persons so admitted during the preceding month, with such other information as appears in regard thereto on his roll, and the clerk of the supreme court shall keep a general roll of all the attor- neys admitted to practice. Attorneys of supreme court. Ante, § 275. 3. Amended by Code Amdts 1880, p 56 Legislation § 280. 1. Enacted March 11, 1873. Bhall^""^ "^^''^ "^^""^ ™"'*" *° "^^''^ '''^^''^ and then read: "Each clerk must keep a roll of 3.' Amendment by Stats. 1901, p 123- un- attorneys and counselors admitted to practice constitutional. See note an e, §5 ' '" ' by the court of which he is clerk, which roll 4^ Amended by Stats. 1905, p 5, must be signed by the person admitted before •" "'"^^''- *•'"«, y. «, he receives his license." § 280a. Effect of diploma granted by Hasting-s College of the Law. Noth- ing in this chapter contained shall be construed as a repeal or modification of any existing provision of law relative to the effect of a diploma granted by the Hastings College of the Law. Legislation g 280a. Added by Stats. 1905, p. 6. § 280b. Admission to practice law on diplomas from certain universities. Any person producing a diploma of graduation from the college of law of the University of Southern California, the Young Men's Christian Associa- tion Law College of San Francisco, or the San Francisco Law School, or evidence of having satisfactorily completed the three years' course of study prescribed by the department of law of Leland Stanford Junior University, or the department of jurisprudence of the University of California, or the institute of law of the University of Santa Clara, or the college of law of Saint Ignatius University shall be entitled to a license to practice law in all the courts of this state, subject to the right of the chief justice of the supreme court of the state to order an examination, as in ordinary cases of applicants without such diploma or other evidence. Legislation S 280b. 1. Added by Stats. 1907, 3. Amended by Stats. 1913, p. 88, inserting p. 804, and then read: "The diploma of the "or the institute of law of the University of students of the University of Southern Califor- Santa Clara." nia College of Law shall entitle the students to 4. Amended by Stats. 1915, p. 660, (1) in- whom it is issued to a license to practice in all serting "the Young Men's Christian Association the courts of this state, without undergoing the Law College of San Francisco, or the San Fran- examination required by section two hundred cisco Law School"; (2) striking out "law" from and seventy-si.x of this code." the phrase "course of law study prescribed"; 3. Amended by Stats. 1909, p. 541, recast- (3) inserting "or the college of law of Saint ing the section. Ignatius University." § 281. Penalty for practicing without license. If any person shall prac- tice law in any court, except a justices' court or police court, without having received a license as attorney and counselor, he shall be guilty of a contempt of court. Contempt. Post, §§ 1209 et seq. 3. Amendment by Stats. 1901, p. 123; un- Justice's court practitioners. Ante, § 96. constitutional. See note ante, § 5. T.^ioi.fi^., « 0Q1 -.IT * A Tut V.11 ■ia'r<> CODE COMMISSIONERS' NOTE. Any person Legislation|281.1. Enacted March 11, 1873. ^^^ ^^g^^^ -^ ^j^^ profession of law. The pro- 3. Amended by Code Amdts. 1880, p. 56, fession is open to all, and it is simply the right (1) adding the word court after justices, t^, practice in court which is not permitted, ex- and (2) changing is to shall be before gept to those duly qualified. Woods' Case, 1 "guilty." Hopk. Ch. 7 ; Cohen v. Wright, 22 Cal. 313. § 282. Duties. It is the duty of an attorney and counselor : 1. To support the constitution and laws of the United States and of this state ; 2. To maintain the respect due to the courts of justice and judicial officers ; 3. To counsel or maintain such actions, proceedings, or defenses only as 282 ATTORNEYS AND COUNSELORS AT LAW. 134 See 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 seek 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 ; 6. To abstain from all offensive personality, and to advance no fact preju- dicial 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 personal to himself, the cause of the defenseless or the oppressed. contempt of court to send accusatory, threatening, or insulting letters to a grand jury, relating to matters which are the sub- ject of their investigations. In re Tyler, 64 Cal. 434; 1 Pac. 884. Misconduct of attorney as contempt of court. See note post, § 1209. To maintain only just and legal actions. It is a violation of the duties of an attor- ney to counsel or maintain such actions or proceedings as do not appear to him to be just and legal. Disbarment of Stephens, 84 Cal. 77; 24 Pac. 46. To employ only such means as are con- sistent with the truth. An attorney is bound to employ, for the purpose of main- taining such causes as are confided to him, only such means as are consistent vrith the truth, and never to seek to mislead the judge, or any other judicial officer, by arti- fice or false statements of fact or of law. In re Tyler, 64 Cal. 434; 1 Pac. 8S4; Guar- dianship of Danneker, 67 Cal. 643; 8 Pac. 514. He is therefore bound to admit the fault of the record, where it is due to a clerical error. Grand Grove v. Garibaldi Grove, 130 Cal. 116; 80 Am. St. Eep. 80; 62 Pac. 486. To maintain confidence of client. The confidence reposed in an attorney is to be maintained inviolate; this obligation is a very high and stringent one, never to be relaxed, except under very exceptional cir- cumstances; fidelity to his client, under all circumstances, is one of the principal obli- gations of an attorney. Disbarment of Cowdery, 69 Cal. 32; 58 Am. Rep. 545; 10 Pac. 47. An attorney, in dealing with his client, is bound to the utmost good faith, and the burden of showing that the trans- action was fair and reasonable is upon him. Valentine v. Stewart, 15 Cal. 387; Kisling V. Shaw, 33 Cal. 425; 91 Am. Dec. 644; Felton V. Le Breton, 92 Cal. 457; 28 Pac. 490; Cox V. Delmas, 99 Cal. 104; 33 Pac. 836; Disbarment of Danford, 157 Cal. 425, 429; 108 Pac. 322; Cooley v. Miller & Lux, 156 Cal. 510, 523; 105 Pac. 981. An attor- ney dealing with a client for his own benefit, in regard to property the subject of his employment, is in a hostile attitude to Subd. 1. Oath. Ante, § 278. Subd. 3. Offender, public, defense of. Pen. Code, § 987. Subd. 5. Privileged communications. See post, § 1881. Legislation § 282. 1. Enacted March 11, 1873. 8. Amended by Code Amdts. 1880, p. 56, (1) in Bubd. 4 omitting "to" before "seek," and substituting for "judges" the words "judge or any judicial officer," and (2) in subd. 7 adding the word "corrupt" before "motive." To maintain respect due courts. It is made the duty of an attorney to maintain the respect due to courts and judicial offi- cers. Alpers V. Hunt, 86 Cal. 78; 21 Am. St. Eep. 17; 9 L. R. A. 483; 24 Pac. 846; Sears v. Starbird, 75 Cal. 91; 7 Am. St. Rep. 123; 16 Pac. 531. To impugn the mo- tive or purity of a trial judge, in a brief filed in the supreme court on an appeal, is a grave breach of professional propriety, and will be treated by the supreme court as a contempt of the latter court. Sears V. Starbird, 75 Cal. 91; 7 Am. St. Rep. 123; 16 Pac. 531; Disbarment of Philbrook, 105 Cal. 471; 45 Am. St. Rep. 59; 38 Pac. 511, 884; First Nat. Bank v. Superior Court, 12 Cal. App. 335, 349; 107 Pac. 322. To say that the action of the court was "a most covetous and wholly unwarranted usurpa- tion of power," and to characterize it also as "opera bouffe," is highly disrespectful to the court and the judge. First Nat. Bank v. Superior Court, 12 Cal. App. 335; 107 Pac. 322; In re Shay, 160 Cal. 399; 117 Pac. 442. An attorney who contumaciously insists upon maintaining a pleading assert- ing a claim after he has knowledge that his client has been restrained from so doing, is guilty of a contempt of court. Lake v. Superior Court, 165 Cal. 182; 131 Pac. 371. It is a violation of the oath of counsel, maliciously to invite and procure the pub- lication of false charges against the judge, for the purpose of improperly influencing him or unjustly discrediting his action in a case, and it is a cause for disbarment (In re Collins, 147 Cal. 8; 81 Pac. 220); and it is a violation of his duty, and a contempt of court, to answer as a guardian ad litem in an action, without an order appointing him as such. Emeric v. Alva- rado, 64 Cal. 529; 2 Pac. 418. It is also a 135 DUTIES OF ATTORNEYS. §282 his client; but he is still bound to the exer- cise of the utmost good faith, and the burden is upon him to rebut the presump- tion of undue influence. Beach v. Riley, 20 Cal. App. 199; 128 Pac. 764. The mere fact that the relation of attorney and client existed, and that a claim by the attorney ought to be looked upon with suspicion, will not warrant the appellate court in saying that a verdict sustaining the claim was not justified, where there is strong evi- dence that there was a consideration there- for. Cousins V. Partridge, 79 Cal. 224; 21 Pac. 745. It is the duty of an attorney, employed to prosecute or defend an action, to communicate to his client any and all information he may acquire in relation to the subject-matter of the suit; he will be presumed to have performed this duty, and any knowledge or notice which comes to him regarding such subject-matter, while acting in such capacity, will be regarded as constructive notice to his client. Bierce V. Red Bluff Hotel Co., 31 Cal. 160; Wit- tenbrock v. Parker, 102 Cal. 93; 41 Am. St. Rep. 172; 24 L. R. A. 197; 36 Pac. 374; Donald v. Beals, 57 Cal. 399. An attorney, having acted as such for one party to a suit, and having had opportunities to know the facts of his client's cause, cannot go over to the adverse side and render assist- ance (Valentine v. Stewart, 15 Cal. 387; Disbarment of Cowdery, 69 Cal. 32; 58 Am. Rep. 545; 10 Pac. 47; De Cells v. Brunson, 53 Cal. 372); and having acted as attorney for one side on a former trial, the court will not permit him to act on the other side, on a subsequent trial of the same cause. Weidekind v. Tuolumne County Water Co., 74 Cal. 386; 5 Am. St. Rep. 445; 19 Pac. 173. Where an attorney has merely been consulted, without any retainer, as to his charges for the commencement and prosecution of an action, and his terms have not been accepted by the party, the relation of attorney and client does not exist, and the attorney is at liberty to accept a retainer from the other side (Hicks v. Drew, 117 Cal. 305; 49 Pac. 189); nor does the relation of attorney and client exist, where one, acting as an agent, em- ploys an attorney for another. Porter v. Peckham, 44 Cal. 204. To preserve secrets. The secrets of the client are to be preserved inviolate by an attorney, where communicated to him in his professional capacity. Valentine v. Stewart, 15 Cal. 387; Gallagher v. William- son, 23 Cal. 331; 83 Am. Dec. 114; Kisling v. Shaw, 33 Cal. 425; 91 Am. Dec. 644; People V. Atkinson, 40 Cal. 284. To abstain from offensive personalities. It is the duty of an attorney to abstain from offensive personalities (In re Tyler, 64 Cal. 434; 1 Pac. 884), and to be a para- gon of candor, fairness, honor, and fidelity in all his dealings with those who place their trust in his ability and integrity; and he will be held to the full measure of what he ought to be. Sanguinetti v. Kossen, 12 Cal. App. 623, 630; 107 Pac. 560. To maintain honor or reputation of party or witness. It is the duty of an attorney to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of his cause. In re Tyler, 64 Cal. 434; 1 Pac. 884. To observe good faith in commencement of actions. An attorney should not encour- age the commencement of an action from any corrupt motive, or from passion or in- terest. Disbarment of Stephens, 84 Cal. 77; 24 Pac. 46. Defend the cause of the oppressed. An attorney is an officer of the court, and takes his office with all its burdens, as well as with all its rights and privileges; and among the burdens thus assumed is the duty to render professional services, with- out compensation, to persons accused of crime, who are destitute of means, upon the appointment of the court; and as such services are no charge against a county, the attorney must look to the possible future ability of the parties to compensate him. Rowe v. Yuba County, 17 Cal. 61. May have interest in result when. A contract for a contingent fee is not con- trary to good morals, and is valid (Hoffman V. Vallejo, 45 Cal. 564; Ballard v. Carr, 48 Cal. 74; Howard v. Throckmorton, 48 Cal. 482; Gage v. Downey, 79 Cal. 140; 21 Pac. 527, 855; King v. Gildersleeve, 79 Cal. 504; 21 Pac. 961; Calanchini v. Branstetter, 84 Cal. 249; 24 Pac. 149; Thurber v. Moves, 119 Cal. 35; 50 Pac. 1063; 51 Pac. 536); but it is otherwise where a third party, not an attorney, contracts with an attorney that he shall be employed as counsel in a case, in consideration that the third party shall be paid part of the compensation re- ceived by such attorney for his services. Alpers v. Hunt, 86 Cal. 78; 21 Am. St. Rep. 17; 9 L. R. A. 483; 24 Pac. 846. Contracts for services. Inducing a client to pay him a fee for services which he knows he is not in a position to perform, is a breach of the obligation of fidelity by an attorney. Disbarment of Danford, 157 Cal. 425. The confidential relation does not exist, however, until the contract for services is made. Cooley v. Miller & Lux, 156 Cal. 510, 524; 105 Pac. 981. Outlays and expenses. In the absence of a special agreement, a client is bound to repay his attorney for all outlays made by him in the payment of the expenses of carrying on the litigation, and an attorney is bound to bear his own personal and traveling expenses. Cooley v. Miller & Lux, 156 Cal. 510; 105 Pac. 981. Action for services. An attorney may, in proving the value of legal services, in- clude therein the amount of a reasonable §282 ATTORNEYS AND COUNSELORS AT LAW. 136 retaining fee, though not mentioned in his complaint. Aydelotte v. Bloom, 13 Cal. App. 56; lOSPac. 877. CODE COMMISSIONERS' NOTE. 1. Duties cf attorneys and counselors. The provisions of ihis section are taken substantially from the oath prescribed to advocates by the laws of Geneva. The oath is as follows: "I swear before God, "To be faithful to the republic and the canton of Geneva; "Never to depart from the respect due to the tribunals and authorities; "Never to counsel or maintain a cause vrhich does not appear to be just or equitable, unless it be the defense of an accused person; "Never to employ knowingly, for the purpose of maintaining the causes confided to me, any means contrary to truth, and never to seek to mislead the judges by any artifice or false state- ment of fact or law; "To abstain from all offensive personality, and to advance no fact contrary to the honor or repu- tation of the parties, if it be not indispensable to the cause with which I may be charged; "Not to encourage either the commencement or the continuance of a suit from any motive of pas- sion or interest; "Not to reject, for any considerations personal to myself, the cause of the weak, the stranger, or the oppressed." [The remainder of this portion of the note, being the report of the New York code commis- sioners, is omitted, and in place thereof is sub- stituted the Canons of Ethics of the American Bar Association. This code of professional ethics was adopted by the American Bar Association at Seattle, Washington, August, 1908.] "I. Preamble. In America, where the stability of courts and of all departments of government rests upon the approval of the people, it is pecu- liarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency, and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the republic, to a great extent, depends upon our maintenance of justice, pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men. "II. The canon of ethics. No code or set of rules can be framed which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life. The following canons of ethics are adopted by the American Bar Association as a general guide, yet the enumeration of particulnr duties should not be construed as a denial of the exist- ence of others equally imperative, though not specifically mentioned. "1. The duty of the lawyer to the courts. It is the duty of the lawyer to maintain tovi^ards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme impor- tance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his griev- ances to the proper authorities. In such cases, but not otherwise, such charges should be encour- aged and the person making them should be pro- tected. "2. The gelection of Judges. It is the duty of the bar to endeavor to prevent political consid- erations from outweighing judicial fitness in the selection of judges. It should protest earnestly and actively against the appointment or election of those who are unsuitable for the bench; and it should strive to have elevated thereto only those willing to forego other employments, whether of a business, political, or other character, which may embarrass their free and fair consideration of questions before them for decision. The as- piration of lawyers for judicial position should be governed by an impartial estimate of their ability to add honor to the office, and not by a desire for the distinction the position may bring to them- selves. "3. Attempts to exert personal influence on the court. Marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by the personal relations of the parties, subject both the judge and the lawyer to misconstruc- tions of motive, and should be avoided. A lawyer should not com;nunicate or argue privately with the judge as to tlie merits of a pending cause, and he deserves rebuke and denunciation for any de- vice or attempt to gain from a judge special per- sonal consideration or favor. A self-respecting independence in the discharge of professional duty, without denial or diminution of the cour- tesy and respect due the judge's station, is the only proper foundation for cordial, personal, and official relations between bench and bar. "4. When counsel for an indigent prisoner. A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best elforts in his behalf. '■5. The defense or prosecution of those ac- cused of crime. It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent per- sons, victims only of suspicious circumstances, might be denied proper defense. Having under- taken such defense, the lawyer is bound by all fair and honorable means, to present every de- fense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law. The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the ac- cused is highly reprehensible. "6. Adverse influences and conflicting interests. It is the duty of a lawyer, at the time of re- tainer, to disclose to the client all the circum- stances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel. It is unprofessional to represent con- flicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a law- yer represents conflicting interests when, in be- half of one client, it is his duty to contend for that which duty to another client requires him to oppose. The obligation to represent the client with undivided fidelity, and not to divulge his secrets or confidences, forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed. "7. Professional colleagues, and conflicts of opinion. A client's profiler of assistance of addi- tional counsel s'nould not be re^^arded as evidence of want of confidence, but the matter should be left to the determination of the client. A lawyer should decline association as colleague if it is ob- jectionable to the original counsel, but if the lawyer first retained is relieved, another may come into the case. When lawyers jointly asso ciated in a cause cannot agree as to any matter vital to the interest of the client, the conflict of opinion should be frankly stated to him for his final determination. His decision should be ac- cepted, unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to co-operate effective^'. In this event it is his duty to ask the client to relieve him. Efforts, direct or indirect, in any way to encroach upon the business of anotlier lawyer, are unworthy of those who should be brethren at the bar; but, nevertheless, it is the right of any lawyer, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel, generally after communication with the lawyer of whom the com- plaint is made. "8. Advising upon the merits of a client's cause. A lawyer should endeavor to obtain full ' knowledge of hii client's cause before advising 137 CODE OP ETHICS. §282 thereon, and he is bound to give a candid opin- ion of the merits and probable result of pending or contemplated litigation. The miscarriages to which justice is subject, by reason of surprises and disappointments in evidence and witnesses, and through mistakes of juries and errors of courts, even though only occasional, admonish lawyers to beware of bold and confident assur- ances to clients, especially where the employ- ment may depend upon such assurance. Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation. "9. Negotiatioas with opposite party. A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incum- bent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not under- take to advise him as to the law. "10. Acquiring interest in litigation. The law- yer should not purchase any interest in the subject-matter of the litigation which he is con- ducting. "11. Dealing with trust property. Money of the client or other trust property coming into the possession of the lawyer should be reported promptly, and except with the client's knowledge and consent should not be commingled with his private property or be used by him. "12. Fixing the amount of the fee. In fixing fees, lawyers should avoid charges which over- estimate their advice and services, as well as those which undervalue them. A client's ability to pay cannot justify a charge in excess of the value of the service, though his poverty may re- quire a less charge, or even none at all. The reasonable request of brother lawyers, and of their widows and orphans without ample means, should receive special and kindly consideration. In de- termining the amount of the fee, it is proper to consider: 1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite properly to conduct the cause; 2. Whether the acceptance of employment in the particular case will preclude the lawyer's appearance for others in cases likely to arise out' of the transaction, and in which there is a rea- sonable expectation that otherwise he would be employed, or will involve the loss of other busi- ness while employed in the particular case or antagonisms with other clients; 3. The custom- ary charges of the bar for similar services; 4. The amount involved in the controversy, and the benefits resulting to the client from the ser- vices; 5. The contingency, or the certainty of the compensation; and 6. The character of the em- ployment, whether casual or for an established and constant client. No one of these considera- tions, in itself, is controlling. They are mere guides in ascertaining the real value of the ser- vice. In fixing fees it should never be forgotten that the profession is a branch of the adminis- tration of justice, and not of mere money-getting trade. "13. Contingent fees. Contingent fees lead to many abuses, and where sanctioned by law should be under the supervision of the court. "14. Suing a client for a fee. Controversies with clients concerning compensation are to be avoided by the lawyer, so far as shall be com- patible with his self-respect and with his right to receive reasonable recompense for his ser- vices; and lawsuits with clients should be re- sorted to only to prevent injustice, imposition, or fraud. "15. How far a lawyer may go in supporting a client's cause. Nothing operates more cer- tainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of the full measure of public esteem and confidence which belongs to the proper dis- charge of its duties, than does the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client's cause. It is im- proper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause. The lawyer owes 'entire de- votion to the interest of the client, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability,' to the end that nothing be taken or be withheld from him, save by the rules of law, legally ap- plied. No fear of judicial disfavor gr public un- popularity should restrain him from the full discharge, of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the 'awyer is to be performed within, and not without, the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience, and not that of his client. "16. Eestraining clients from improprieties. A lawyer should use his best efforts to restrain and to prevent his clients from doing those things which the lawyer himself ought not to do, par- ticularly with reference to their conduct towards courts, judicial officers, jurors, witnesses, and suitors. If a client persists in such wrong-do- ing the lawyer should terminate their relation. "17. Ill-feeling and personalities between ad- vocates. Clients, not lawyers, are the litigants. Whatever mav be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupu- lously avoided. In the trial of a cause it is in- decent to allude to the personal history or the personal peculiarities and idiosyncrasies of coun- sel on the other side. Personal colloquies be- tween counsel, which cause delay and promote unseemly wrangling should also be carefully avoided. "18. Treatment of witnesses and litigants. A lawyer should always treat adverse witnesses and suitors with fairness and due consideration, and he should never minister to the malevolence or prejudices of a client in the trial or conduct of a cause. The client cannot be made the keeper of the lawyer's conscience in professional mat- ters. He has no right to demand that his counsel shall abuse the opnosite party, or indulge in of- fensive personalities. Improper speech is not excusable on the ground that it is what the client would say if speaking in his own behalf. "19. Appearance of lawyer as witness for his client. When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument, and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client. "20. Newspaper discussion of pending litiga- tion. Newspaper publications, by a lawyer, as to pending or anticipated litigation, may interfere with a fair trial in the courts, and otherwise prejudice the due administration of justice. Gen- erally they are to be condemned. If the extreme circumstances of a particular case justify a state- ment to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement. "21. Punctuality and expedition. It is the duty of the lawyer not only to his client, but also to the courts and to the public, to be punctual in attendance, and to be concise and direct in the trial and disposition of causes. "22. Candor and fairness. The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness. It is not candid or fair for the lawyer know- ingly to misquote the contents of a paper, the testimony of a witness, the language or the argu- ment of opposing counsel, or the language of a decision or a text-book; or with knowledge of its invalidity, to cite as authority a decision that §282 ATTORNEYS AND COUNSELORS AT LAW. 138 has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved; or, in those jurisdic- tions where a side has the opening and closing arguments, to mislead his opponent by conceal- ing or withholding positions in his opening argu- ment upon which his side then intends to rely. It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes. A lawyer s-hould not offer evidence, which he knows the court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the judge arguments upon any point not properly call- ing for determination by him. Neither should he introduce into an argument, addressed to the court, remarks or statements intended to in- fluence the jury or bystanders. These and all kindred practices are unprofessional and un- worthy of an officer of the law, charged, as is the lawyer, with the duty of aiding in the ad- ministration of justice. "23. Attitude toward Jury. All attempts to curry favor with juries by fawning, flattery, or pretended solicitude for their personal comfort. are unprofessional. Suggestions of counsel, look- ing to the comfort or convenience of jurors, and propositions to dispense with argument, should be made to the court out of the jury's hearing. A lawyer must never converse privately with jurors about the case; and both before and dur- ing the trial he should avoid communicating with them, even as to matters foreign to the cause. "24. Bight of lawyer to control the incidents of the trial. As to incidental matters pending the trial, not affecting the merits of the cause or working substantial prejudice to the rights of the client, such as forcing the opposite lawyer to trial when he is under affliction or bereave- ment, forcing the trial on a particular day, to the Injury of the opposite lawyer, when no harm will result from a trial at a different time; agreeing to an extension of time for signing a bill of ex- ceptions, cross-interrogatories, and the like, ths lawyer must be allowed to judge. In such mat- ters no client has a right to demand that his counsel shall be illiberal, or that he do anything therein repugnant to his own sense of honor and propriety. "25. Taking technical advantage of opposite counsel. Agreements with him. A lawyer should not ignore known customs or practice of the bar or of a particular court, even when the law per- mits, without giving timely notice to the oppo- sing counsel. As far as possible, important agree- ments affecting the rights of clients, should be reduced to writing; but it is dishonorable to avoid performance of an agreement fairly made because it is not reduced to writing as required by rules of court. "26. Professional advocacy other than before courts. A lawyer, openly, and in his true char- acter, may render professional services before legislative or other bodies, regarding proposed legislation, and in advocacy of claims before de- partments of government, upon the same principles of ethics which justify his appearance before the courts; but it is unprofessional for a lawyer so engaged to conceal his attorneyship, or to employ secret personal solicitations, or to use means, other than those addressed to the reason and understanding, to influence action. "27. Advertising, direct or indirect. The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well- merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary, simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not, per se, improper. But solicitation of busi- ness by circulars or advertisements, or by per- sonal communications or interviews, not war- ranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection, through touters of any kind, whether allied real estate firms or trust com- panies advertising to secure the drawing of deeds or wills, or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business, by furnishing or inspiring newspaper comments concerning causes in which the lawyer has been or is engaged, or concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer's position, and all other like self-laudation, defy the traditiuns and lower the tone of our high calling, and are in- tolerable. "28. Stirring up litigation, directly or through agents. It is unprofessional for a lawyer to volunteer advice to bring a lawsuit except in rare cases, where ties of blood, relationship, or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is dis- reputable to hunt up defects in titles or other causes of action and inform thereof, in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal in- juries or those having any other grounds of ac- tion, in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches, or others who may succeed, under the guise of giving disinterested friendly advice, in influen- cing the criminal, the sick, and the injured, the ignorant, or others, to seek his professional ser- vices. A duty to the public and to the profes- sion devolves upon every member of the bar, hav- ing knowledge of such practices upon the nart of any practitioner, immediately to inform there- of, to the end that the offender may be dis- barred. "29. Upholding the honor of the profession. Lawyers should expose without fear or favor, be- fore the proper tribunals, corrupt or dishonest conduct in the profession, and should accept with- out hesitation, employment against a member of the bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the bar against the admission to the profession of candidates unfit or unqualified, because deficient in either moral character or education. He should strive at all times to up- hold the honor and to maintain the dignity of the profession, and to improve not only the law, but the administration of justice. "30. Justifiable and unjustifiable litigations. The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the oppo- site party or to work oppression or wrong. But otherwise it is his right, and, having accepted retainer, it becomes his duty to insist upon the judgment of the court as to the legal merits of his client's claim. His appearance in court should be deemed equivalent to an assertion on his honor that, in his opinion, his client's case is one proper for judicial determination. "31. Eespoiisibility for litigation. No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer, upon his own responsibility, must decide what business he will accept as counsel, what causes he will bring into court for plain- tiffs, what causes he will contest in court for defendants. The responsibility for advising ques- tionable transactions, for bringing questionable suits, for ursine questionable defenses, is the lawyer's responsibility. He cannot escape it by urging as an excuse that he is only following his client's instructions. "32. The lawyer's duty in Its last analysis. No client, corporate or individual, however power- ful, nor any cause, civil or political, however im- portant, is entitled to receive, nor should any lawyer render, any service or advice involving disloyalty to the law, whose ministers we are. 139 AUTHORITY. §283 or disrespect of the judicial office, ■which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer invites and merits stern and just con- demnation. Correspondingly, he advances the honor of his profession and the best interests of his client when he renders sei'vice or gives iidvice tending to impress iipon the client and his under- taking exact compliance with the strictest prin- ciples of moral law. He must also observe and .■idvise his client to observe the statute law, though until a statute shall have been construed and interpreted by competent adjudication, he is free, and is entitled to advise as to its validity, and as to what he conscientiously believes to be its just meaning and extent. But, above all. a law- yer will find his highest honor in a deserved reputation for fidelity to private trust and to pub- lic duty, as an honest man and as a patriotic and loyal citizen." 2. General rights of attorney and client. Counsel fees, etc. An attorney has a lien for his costs upon a judgment recovered by him, which may be enforced, upon giving notice to the ad- verse party not to pay the judgment until the amount of the costs be paid; and in some cases, where there has been collusion between the par- ties to cheat the attorney, the court has required the client to satisfy them. But this practice is confined to some certain and fixed amount allowed to an attorney by statute, and is not extended to cases where an attorney or counselor claims a quantum meruit compensation for his services. In this state we have no statute giving costs to attorneys, and they must consequently recover for their services in the ordinary mode. Ex parte Kyle, 1 Cal. 331. And as to compensation of at- torneys, see further, Mansfield v. Borland, 2 Cal. 507; Carriere v. Minturn, 5 Cal. 435. 3. Retaining fee in advance. An attorney is entitled to his retaining fee in advance, unless he stipulates to the contrary. Cavillaud v. Yale, 3 Cal. lOS; 59 Am. Dec. 388. In a suit for com- pensation, as attorney in a certain proceeding, it is not competent to prove the value of the attor- ney's services in another proceeding. A person who is not a lawyer is an incompetent witness to prove the value of legal services. Hart v. Vidal, 6 Cal. 56. How receivers, authorized to appoint and retain counsel, and to stipulate that the com- pensation of such counsel shall be left to the dis- cretion of the court, shall provide for the pay- ment of such compensation. See Adams v. Wood, 8 Cal. 306. In suits by attorneys to recover compensation for legal services, unskillful or negli- gent conduct or the skill employed in the case is an important inquiry. A suit may be won, and yet the attorney be guilty of great negligence, etc. Bridges v. Paige, 13 Cal. 642. [3a.] Negligence of or mismanagement by at- torney. Wh;it must be shown to establish negli- gence on part of attorney. Hastings v. Halleck, 13 Cal. 203. Where, through the fault of an at- torney, judgment is rendered against the client, the latter has a remedy against the attorney, but the judgment remains undisturbed, unless some fraud or collusion, etc., on the part of the attor- ney is shown. Sampson v. Ohleyer, 22 Cal. 210, and cases therein cited. As to bargain.s by an attorney with a client, of advantage to the for- mer, protection of the client in such matters, see Kisling v. Shaw, 33 Cal. 425; 91 Am. Dec. 644. For instances of gross mismanagement by an attorney, see Drais v. Hogan, 50 Cal. 121. 4. Employing only truthful means. Seeking to mislead judges. See case of Fletcher v. Dainger- fiebl, 2(1 < al. ■l•^7. 5. Must preserve the secrets of his client. Val- entine V. Stewart, 15 Cal. 387; Gallagher v. Wil- liamson, 23 Cal. 331; 83 Am. Dec. 114; Kisling V. Shaw, 33 Cal. 425; 91 Am. Dec. 644; People v. Atkinson, 40 Cal. 284. What are not privi- leged communications. Hager v. Shiudler, 29 Cal. 47 ; Satlerlee v. Bliss, 36 Cal. 489. 6. Espouse the cause of the defenseless. De- fend persons accused of crime. It is part of the general duty of counsel to render their pro- fessional services to persons accused of crime, who are destitute of means, upon the appoint- ment of the court, when not inconsistent with their obligations to others; and for compensation they must trust to the possible future ability of the parties. Counsel are not considered at liberty to reject, under circumstances of such chiracter, the cause of the defenseless because no provision for their compensation is made by law. Rowe v. Yuba County, 17 Cal. 61. § 283. Authority. An attorney and counselor shall have authority: 1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise; 2. To receive money claimed by his client in an action or proceeding dur- ing the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to dis- charge the claim or acknowledge satisfaction of the judgment. Rogers, 13 Cal. 191; Sampson v. Ohleyer, 22 Cal. 200); but the attorney cannot com- promise an action, in defiance of the pro- test of his client in open court. Preston v. Hill, 50 Cal. 43; 19 Am. Eep. 647. An authority peculiar to his character as at- torney, in the discharge of his duties and functions, is conferred by this section. Alpers V. Hunt, 86 Cal. 78; 21 Am. St. Rep. 17; 9 L. R. A. 483; 24 Pac. 846. This sec- tion refers only to the "steps of an action" after it has been instituted, and pertaining to its conduct; it has no application to a contract made before the commencement of the action. Ephraim v. Pacific Bank, 149 Cal. 222; 86 Pac. .507. So long as the at- torney remains of record, his right to manage and control the action cannot be Legislation § 283. 1. Enacted March 11, 1873. 3. Amended by Code Amdts. 1S80, p. 57, changing "counselor shall have" from "counselor has." General authority. The nature of the relation of attorney and client is that of principal and agent; the attorney is the agent of his client for all purposes of con- ducting the particular litigation (Carter v. Green Mountain Gold Mining Co., 83 Cal. 222; 23 Pac. 317); but his authority is broader than that of an ordinary agent; and because of the particular nature of his duties, he is vested vs'ith discretionary power of decision in the management and conduct of the litigation, and may bind his client by consenting to a judgment against him, in the absence of fraud or collusion or insolvency on his ow^n part (Holmes v. 283 ATTORNEYS AND COUNSELORS AT LAW. 140 questioned by the client (Wylie v. Sierra Gold Co., 120 Cal. 485; 52 Pac. 809), and of course the opposite party cannot ques- tion it. Board of Commissioners v. Younger, 29 Cal. 147; 87 Am. Dec. 164. An attorney appears in a cause and participates in the proceedings therein by the license of the court, of wnich he is an officer. Clark v. Willett, 35 Cal. 534. An attorney in fact, who is also an attorney at law, however, has no right to sign a complaint as plain- tiff's attorney. Dixey v. Pollock, 8 Cal. 570. A person's authority to enter into a stipulation does not follow from his gen- eral retainer as an attorney. Teich v. San Jose Safe Deposit Bank, 8 Cal. App. 397; 97 Pac. 167. An attorney employed by a person whose property has been stolen, to assist the district attorney in the prosecu- tion of several cases against the alleged thieves, with authority to take such meas- ures as he deems expedient, has power to bind his client by the employment of a detective to seek and obtain evidence in furtherance of the prosecution. Kast v. Miller & Lux, 159 Cal. 723; 115 Pac. 932. In this title and chapter, the term "attor- ney," "counselor," "attorney at law," are used synonymously. Pittman v. Carsten- brook, 11 Cal. App. 224; 104 Pac. 699. MaJiner of exercising authority. The object of this section is, that, whenever an attorney shall enter into an agreement for the purpose of binding his client, there shall be such a record thereof as will pre- clude any question concerning its character or effect, and that the extent of the agree- ment may be ascertained by the record; if oral, that it shall be entered in the min- utes, and if written, that it shall be filed with the clerk; it is not intended to enlarge or abridge the authority of the attorney, but only to prescribe the manner of its exercise (Smith v. Whittier, 95 Cal. 279; 30 Pac. 529; Preston v. Hill, 50 Cal. 43; 19 Am. Eep. 647; Eeclamation District v. Ham- ilton, 112 Cal. 603; 44 Pac. 1074); but it is not intended that every admission or agreement made during the course of the trial shall either be in writing or entered in the minutes; such a literal construction might lead to absurd consequences. Con- tinental Building etc. Ass'n v. Woolf, 12 Cal. App. 725; 108 Pac. 729. Verbal stipulations. A verbal stipulation by an attorney, made during the progress of a trial, and not entered in the minutes, does not bind the client (Merritt v. "Wil- cox, 52 Cal. 238) ; but when entered in the minutes it is binding, and is a part of the judgment roll. Kent v. San Francisco Sav. Union, 130 Cal. 401; 62 Pac. 620. A verbal stipulation, not entered in the minutes nor filed with the clerk, cannot be regarded, except so far as it is admitted by the par- ties against whom it is sought to be en- forced, or has been wholly or in part exe- cuted (McLaughlin v, Clausen, 116 Cal. 487; 48 Pac. 487); but a verbal stipulation may be taken into consideration by the court, in the exercise of its discretion, upon a motion to set aside a default, even though it is not entered in the minutes. McGowan v. Kreling, 117 Cal. 31; 48 Pac. 980. "This section does not require the construction, that in no instance shall an agreement, which the attorney may make in behalf of his client, be binding, unless entered in the minutes of the court or filed with the clerk; its provisions have reference to ex- ecutory agreements, and not to those which have been wholly or in part executed; and it was with reference to oral agreements of an executory character that the court said, in its opinion in Borkheim v. North British etc. Ins. Co., 38 Cal. 623, 'of such agreements, therefore, there can be no spe- cific performance'; if, under the terms of a mutual stipulation which was only verbal, one party has received the advantage for which he entered into it, or the other party has, at his instance, given up some right or lost some advantage, so that it would be inequitable for him to insist that the stipu- lation was invalid, he will not be permitted to repudiate the obligation of his own agreement upon the ground that it had not been entered in the minutes of the court (Himmelmann v. Sullivan, 40 Cal. 125; Hawes v. Clark, 84 Cal. 272; 24 Pac. 116); if the party admits that he made such verbal stipulation, it will be as binding upon him as if it had been entered in the minutes of the court." Smith v. Whittier, 95 Cal. 279; 30 Pac. 529; Patterson v. Ely, 19 Cal. 28; Reese v. Mahoney, 21 Cal. 305; Johnson v. Sweeney, 95 Cal. 304; 30 Pac. 540; Hearne v. De Young, 111 Cal. 373; 43 Pac. 1108; Reclamation District v. Ham- ilton, 112 Cal. 603; 44 Pac. 1074; Mc- Laughlin V. Clausen, 116 Cal. 487; 48 Pac. 487; Crane v. Crane, 121 Cal. 99; 53 Pac. 433; Coonan v. Loewenthal, 129 Cal. 197; 61 Pac. 940; Daneri v. Gazzola, 139 Cal. 416; 73 Pac. 179. An unauthorized stipula^ tion may be enforced, even if it does not comply with the terms of this section, if it is not forbidden by some other statute or by some principle of law. Wall v. Mines, 130 Cal. 27; 62 Pac. 386. Courts refuse to settle disputes in regard to verbal agree- ments, or to try collateral issues for the purpose of determining whether any agree- ment has been made. Johnson v. Sweeney, 95 Cal. 304; 30 Pac. 540; Smith v. Whittier, 95 Cal. 279; 30 Pac. 529; Hearne v. De Young, 111 Cal. 373; 43 Pac. 1108; Mc- Laughlin V. Clausen, 116 Cal. 487; 48 Pac. 487; McGowan v. Kreling, 117 Cal. 31; 48 Pac. 9S0. Where admissions or stipula- tions of an attorney in behalf of his client, being yet executory, are denied, the only proof of their validity rests upon a compli- ance with the code provision, and no other proof can be received (Hearne v. De Young, 11 Cal. 373; 43 Pac. 1108); but if 141 AUTHORITY. §283 the record shows the admission of a fact which makes the stipulation unnecessary, and that the court acted upon such admis- sion, and embodied it in the bill of excep- tions, the fact cannot be traversed upon appeal. Hearne v. De Young, 111 Cal. 373; 43 Pac. 1108; Patterson v. Ely, 19 Cal. 28; Reese v. Malioney, 21 Cal. 305; Himmel- mann v. Sullivan, 40 Cal. 125; Hawes v. Clark, 84 Cal. 272; 24 Pac. 116; Smith v. Whittier, 95 Cal. 279; 30 Pac. 529. An ad- mission of counsel, in open court, as to immoral conduct of his client, even though in excess of his authority under the above section, is not a ground of reversal, where it clearly appears that the defendant was not iniured therebv. Qucirolo v. Queirolo, 129 Cal. 686; 82 Pac. 315. Written agreement not filed. The same principles are applicable to the enforce- ment of a written agreement not filed, as govern a verbal agreement not entered in the minutes of the court. Smith v. Whit- tier, 95 Cal. 279; 30 Pac. 529. Authority to appear for party. An at- torney's license is prima facie evidence of his authority to appear for the person he professes to represent (Clark v. Willett, 35 Cal. 534; People v. Mariposa County, 39 Cal. 683); and it will be presumed, where an attornej'- signs a paper, that he was authorized so to do. Ricketson v. Torres, 23 Cal. 636. The unauthorized appearance of an attorney, where there is no fraud and no allegation of insolvency on the part of the attorney, does not give the party a right to assail the judgment on that ground. Holmes v. Rogers, 13 Cal. 191. The unau- thorized appearance of an attorney may be set aside (Garrison v. McGowan, 48 Cal. 592) ; but a default judgment entered against a defendant will not be vacated, where he was informed of tlie fact of the unauthorized appearance, but took no steps to set it aside. Scale v. McLaughlin, 28 Cal. 668. A party cannot repudiate an unauthorized appearance after three years, for the purpose of obtaining a dismissal on the ground that the summons was not re- turned within the time prescribed by law. Pacific Paving Co. v. Vizelich, 141 Cal. 410; 74 Pac. 352; and see also Baker v. O'Rior- dan, 65 Cal. 368; 4 Pac. 232; Hill v. City Cab etc. Co., 79 Cal. 188; 21 Pac. 728; Hunter v. Bryant, 98 Cal. 247; 33 Pac. 51. A parol agreement of employment is suffi- cient; it is not necessary for an attorney to show his authority, unless questioned by a proper plea. Holmes v. Rogers, 13 Cal. 191; Turner v. Caruthers, 17 Cal. 431; Hayes v. Shattuck, 21 Cal. 51; Ricketson V. Torres, 23 Cal. 636; Willson v. Cleave- land, 30 Cal. 192; Garrison v. McGowan, 48 Cal. 592; Boston Tunnel Co. v. McKenzie, 67 Cal. 485; 8 Pac. 22. The adverse party or his attorney, upon a mere suggestion at the bar, cannot deny the right of a party to appear by the attorney of record, nor deny that the attorney so appearing has full authority to prosecute the suit; the proper procedure is a motion to dismiss, founded upon affidavit of want of author- ity, made by the party whom the attorney assumes to represent. Turner v. Caruthers, 17 Cal. 431; Clark v. Wilktt, 35 Cal. 534; People V. Mariposa County, 39 Cal. 683. Where there are several parties, each hav- ing separate attorneys, one of the attorneys cannot act for a party he does not repre- sent (Hobbs V. Duff, 43 Cal. 485); but where he does so act for another defendant, it will be presumed that he has done so with the authority of the attorney for such party. McCreery v. Everding, 44 Cal. 284. Where an attorney appears for two or more persons, and signs as "attorr.ey for de- fendants," such appearance will be limited to the defendants for whom he expressly appears. Spangel v. Bellinger, 42 Cal. 148. Extent of authority to bind client. An attorney may acknowledge the service of papers; but such an acknowledgment does not carry an admission of the things re- cited therein (Estate of More, 143 Cal. 493; 77 Pac. 407); nor is it a waiver of the objection that the service was too late. Towdy v. Ellis, 22 Cal. 650. The right of an attorney to sign pleadings binding his client will be presumed. Coward v. Clan- ton, 79 Cal. 23; 21 Pac. 359; Duff v. Duff, 71 Cal. 513; 12 Pac. 570; Kamm v. Bank of California, 74 Cal. 191; 15 Pac. 765. He may stipulate that one action shall abide and be determined by the result of another action, and that final judgment may be entered upon such determination (Gilmore V. American Central Ins. Co., 67 Cal. 366; 7 Pac. 781; Hills v. Sherwood, 33 Cal. 474); and he may enter a judgment of retraxit against his client (Merritt v. Campbell, 47 Cal. 542; Board of Commis- sioners V. Younger, 29 Cal. 147; 87 Am. Dec. 164) ; and he may agree that the court may find additional facts to cover all the questions raised by the pleadings (Marius v. Bicknell, 10 Cal. 217); that damages may be assessed in currency (Dreyfous v. Adams, 48 Cal. 131); that a deposition may be read in evidence (Rob- inson v. Placerville etc. R. R. Co., 65 Cal. 263; 3 Pac. 878), and with the same force and effect, and subject to the same excep- tions, as if taken in the case on trial (Brooks V. Crosby, 22 Cal. 42; King v. Haney, 46 Cal. 560; 13 Am. Rep. 217); and he has power to extend the time for giving notice of appeal (Simpson v. Budd, 91 Cal. 488; 27 Pac. 758), and of a motion for a new trial (Simpson v. Budd, 91 Cal. 488; 27 Pac. 758; Hobbs v. Duff, 43 Cal. 485;' Gray v. Nunan, 63 Cal. 220; Patrick v. Morse, 64 Cal. 462; 2 Pac. 49; Briehman v. Ross, 67 Cal. 601; 8 Pac. 316) ; and to agree to the facts upon which the cause shall be determined (Hess v. Bolinger, 48 Cal. 349), such an agreement being like an admission 283 ATTORNEYS AND COUNSELORS AT LAW. 142 in the pleadings as to the facts thus stipu- lated (Muller V. Eowell, 110 Cal. 318; 42 Pac. 804) ; and he has power to agree that a motion for a new trial may be denied (Meerholz v. Sessions, 9 Cal. 277; Brother ton V. Hart, 11 Cal. 405; Mecham v. Mc- Kay, 37 Cal. 154; San Francisco v. Certain Eeal Estate, 42 Cal. 513; Erlanger v. South- ern Pacific R. R. Co., 10& Cal. 395; 42 Pac. 31; Reay v. Butler, 118 Cal. 113; 50 Pac. 375) ; but where the agreement for the de- nial of a motion for a new trial is merely for the purpose of facilitating the appeal, the court will review the question upon appeal. Mecham v. McKay, 37 Cal. 154. He has power to agree to the time of ser- vice of statement on motion for a new trial (Mills v. Dearborn, 82 Cal. 51; 22 Pac. 1114); and to stipulate as to a tran- script on appeal (McCreery v. Everding, 44 Cal. 246), and that the same is true and correct (Weil v. Paul, 22 Cal. 492;, God- chaux V. Mulford, 2-6 Cal. 316; 85 Am. Dee. 178); but such a stipulation merely obvi- ates the necessity of a certificate by the clerk (Todd v. Winants, 36 Cal. 129; Leon- ard V. Shaw, 114 Cal. 69; 45 Pac. 1012), and is a substitute for the clerk's certifi- cate to the correctness of the transcript (Wetherbee v. Carroll, 33 Cal. 549); it does not waive the record required by law (Siebe v. .Joshua Hendy Machine Works, 86 Cal. 390; 25 Pac. 14; Leonard v. Shaw, 114 Cal. 69; 45 Pac. 1102). He also has power to waive findings of fact (Dough- erty V. Friermuth, 68 Cal. 240; 9 Pac. 98; Smith V. Whittier, 95 Cal. 279; 30 Pac. 529) ; to waive all errors in the record, after service of notice of appeal (Glotz- back v. Foster, 11 Cal. 37), and to waive the signature of the judge to the bill of exceptions. Sarver v. Garcia, 49 Cal. 218; and see Meredith v. Santa Clara Mining Ass'n, 60 Cal. 617. But an attorney has no authority to instruct a sheriff to con- duet a business attached, and thereby bind his client for expenses incurred (Alexander v. Denaveaux, 53 Cal. 663; affirmed, 59 Cal. 476), or to compromise an action he is employed to prosecute or defend (Am- brose V. McDonald, 53 Cal. 28; Commercial Union Assur. Co. v. American Central Ins. Co., 68 Cal. 430; 9 Pac. 712; Trope v. Kerns, 83 Cal. 553; 23 Pac. 691; Smith v. Whittier, 95 Cal. 279; 30 Pac. 529; Knowl- ton V. Mackenzie, 110 Cal. 183; 42 Pac. 580; Reclamation District v. Hamilton, 112 Cal. 603; 44 Pac. 1074), or, under his general employment, to submit a client's cause to arbitration (Bates v. Visher, 2 Cal. 355), or to stipulate for the dismissal of an action, where the party he represents has parted with his interest to another, who prosecutes in his name (Walker v. Felt, 54 Cal. 386; Mastick v. Thorp, 29 Cal. 444; Dutton v. Warschauer, 21 Cal. 609; 82 Am. Dee. 765) ; nor can he, against the objection of his client, compromise an ac- tion, and consent to judgment against him (Preston v. Hill, 50 Cal. 43; 19 Am. Rep. 647); nor has he authority to convey the title to his client's land. Ryan v. Tomlin- son, 31 Cal. 11. Termination of authority. Under a gen- eral retainer, the authority of an attorney terminates with the entry of final judg- ment, except for the purpose of enforcing it. Knowlton v. Mackenzie, 110 Cal. 183; 42 Pac. 580. He has authority to take out execution, and procure a levy thereof, and receive and collect money thereunder. Jones V. Spear, 56 Cal. 163. The death of the client also terminates the employment and authority of the attorney, and no sub- sequent steps can be taken in the case under the employment. .Judson v. Love, 35 Cal. 463; Movie v.- Landers, 78 Cal. 99; 12 Am. St. Rep.' 22; 20 Pac. 241. But where, upon the death of the party, pending an appeal, the attorney becomes the attorney for his executors, he may move to dismiss the appeal without a formal substitution, if no substitution be made before the hear- ing of the motion. Whartenby v. Reay, 92 Cal. 74; 28 Pac. 56. Upon the death of one member of a firm of attorneys, the client has the right to terminate the em- ployment. Little V. Caldwell, 101 Cal. 553; 40 Am. St. Rep. 89; 36 Pac. 107. Presumption in favor of authority of attorney. See note 16 Am. Dec. 98. Power of client over attorney. See note 87 Am. Dec. 166. Authority of attorney to accept as payment a sum less than due. See notes 41 Am. Rep. 847; 31 L. R. A. (N. S.) 523. Extent of client's control of cause. See note 93 Am. St. Rep. 170. Implied authority of attorney. See note 132 Am. St. Rep. 119. Implied authority of attorney to prosecute pro- ceedings for review. See note 16 Ann. Cas. 928. Right of attorney to employ associate counsel or assistants at expense of client. See note 15 Ann. Cas. 1180. Authority of attorney to incur expenses inci- dent to suit for client. See notes Ann. Cas. 1912D, 313; 23 L. R. A. (X. S.) 702. Power of attorney to withdraw answer or ap- pearance and permit a default judgment. See note 33 L. R. A. 515. Authority of attorney to discontinue suit. See note 4 L. R. A. (N. S.) 244. Authority of attorney to enter retraxit. See note 25 L. R. A. (N. S.) 1313. CODE COMMISSIONERS' NOTE. 1. Extent of attorney's authority. As to the extent of an attorney's authority, and wlien it is presumed, see Turner v. Caruthers, 17 Cal. 431; Haves v. Shattuck, 21 Cal. 51; Ricketson v. Torres. 23 Cal. 636: Holmes v. Rogers, 13 Cal. 191; Willson V. Cleaveland, 30 Cal. 192; People v. Mariposa County, 39 Cal. 683. 2. Attorney in fact, but not attorney at law. An attorney in f. t j t i r, ■,-, , ^ ,, . ■ J. 1 -ii, l etc. Lo. V. Drivers Ind. Laundry Co., 13- where an attorney is appointed without p , . iirr.Toqpn^ ^k "^ ' such notice. Nicol v. San Francisco, 130 ^-ai. App. no, luy rac. db. §287. Causes for which court may remove attorney. An attorney and counselor may be removed or suspended by the supreme court, or any department thereof, or by any district court of appeal, or by any superior court of the state, for either of the following causes, arising after his admis- sion to practice : 1. His conviction of a felony or misdemeanor involving moral turpitude^ in which case the record of conviction shall 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, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney and counselor ; 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 counselor by another person who is not an attorney and counselor ; 5. For the commission of any act involving moral turpitude, dishonesty or corruption, whether the same be committed in the course of his relations as an attorney or counselor at law, or otherwise, and whether the same shall constitute a felony or misdemeanor or not; and in the event that such act shall constitute a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disbarment or suspension from practice therefor. In all cases where an attorney is removed or suspended by a superior court, the judgment or order of removal or suspension may be reviewed on appeal by the supreme court. Attorney has right to make a defense. See forbear"; (4) in subd. 3, adding "or willfully," post, §§292 et spq. after "corruptly"; (5) in last paragraph, sub- Attorney defending prosecution instituted by stituting "superior" for "district." himself or partner forfeits license. See Pen. *• Amendment by Stats. 1901, p. 124; un- Code § 162 constitutional. See note ante, § 5. 5. Amended by Stats. 1911, p. 848, (1) in Legislation § 287. 1. Enacted March 11, 1873. introductory paragraph, adding "or by any dis- 2. Amended by Code Amdts. 1873-74, p. trict court of appeal"; (2) in subdivision 4. sub- 289, (1) adding subd. 4; (2) changing the last stituting a semicolon for a period; (3) adding paragraph, after "suspended by a," from "dis- subdivision 5. trict court he may appeal to the supreme court, T>^.rr,«« 4..^ ^^-^^-^^ „~ . „j tt^ and the judgment or order of the district court is Power to remove or suspend. Every subject, on such appeal, to review, as in civil court having power to admit attorneys to actions," to read as at present, except the word practice has inherent power . to disbar or district." ^oo« r-r suspond them, whenever tlieir conduct 3. Amended by Code Amdts. 1880, p. 57, , ^ ,, j. V ->.. i -• ,, .• (1) changing the words in the introductory para- shows them to be unfitted for the practice graph, after "supreme court," from "and by the of their profession (People V. Turner, 1 district courts of the state," io read as at Cal. 143 ; 52 Am. Dec. 295) ; but a lustice's present; (2) in subd. 1, substituting shall be" i u u t, • t t for "is"; (3) in subd. 2, after "profession," <^ourt has no such power. Baird v. .Tus- adding "which he ought in good faith to do or tice's Court, 11 Cal. App. 439; 105 Pae. 1 Fair. — 10 §287 ATTORNEYS AND COUNSELORS AT LAW. 146 259. Attorneys are subject to the author- ity of courts, and may, for causes shown, be suspended or removed, and deprived of the right to pursue their profession, by the supreme court (Alpers v. Hunt, 86 Cal. 78; 21 Am. St. Rep. 17; 9 L. R. A. 483; 24 Pac. 846); and the supreme court may, of its own motion, set aside, for fraud or con- cealment, an order admitting an attorney to practice. Case of Lowenthal, 61 Cal. 122. While the supreme court has both original and appellate jurisdiction in pro- ceedings to disbar attorneys, it will not exercise original jurisdiction, except where the prosecution has been instituted by a bar association, or other public body, in the public interest. Disbarment of Ashley, 146 Cal 600; 80 Pac. 1030. Causes of disbarment. The causes are enumerated in this section, and an attor- ney cannot be disbarred for others than those enumerated. In re Collins, 147 Cal. 8; 81 Pac. 220. Before the adoption of the codes, however, it was held that attorneys might be disbarred for disloyalty to the national government, and for refusal to take the oath of loyaltv prescribed by the legislature. Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241; 85 Am. Dec. 62. A court has no power to adjudge any man, whether lawyer or layman, "infamous"; and to incorporate into an order pronoun- cing an attorney guilty of contempt an adjudication that he is infamous, is with- out precedent, and wholly illegal. Fletcher V. Daingerfield, 20 Cal. 427. Where an at- torney is charged, in disbarment proceed- ings, with a crime, which charge is denied, the court has no jurisdiction to prosecute, until he has been convicted of such crime (In re Tilden, 3 Cal. Unrep. 383; 25 Pac. 687); but an attorney may be disbarred for a violation of his professional duties, although the charge against him might be made ithe basis of an indictment or infor- mation. Disbarment of Danford, 157 Cal. 425; 108 Pac. 322. If an attorney is found guilty of acts indicating professional moral depravity, the court cannot, without a previous conviction of a criminal offense, take awav his license as such attornev. In re Treadwell, 67 Cal. 353; 7 Pac. 724. It is only when disbarment is sought upon the mere ground that the accused has been guilty of a public offense involving moral turpitude, that a case for disbarment can- not be made until there has been a con- viction for the offense. Disbarment of Danford, 157 Cal. 425; 108 Pac. 322. Con- viction of an attempt to commit the crime of extortion is a conviction of a crime in volving moral turpitude, within the mean- ing of the first subdivision of this section. Disbarment of Coffey, 123 Cal. 522; 56 Pac. 448. A conviction for felony or misde- meanor involving moral turpitude, is a ground for disbarment, whether the offense was committed in a private or professional relation. Ex parte Tyler, 107 Cal. 7S; 40 Pac. 33. The proceedings of the court are to determine whether the attorney is enti- tled to continue to practice as such, and not whether he is guilty of the commission of a crime. In re Treadwell, 67 Cal. 353; 7 Pac. 724; Ex parte Tyler, 107 Cal. 78; 40 Pac. 33; Disbarment of Wharton, 114 Cal. 367; 55 Am. St. Rep. 72; 46 Pac. 172. But in those cases where it is charged in the accusation that the attorney has violated a law of the state in a matter distinct from his professional conduct and obliga- tions, and not by virtue of his office as an attorney, proceedings for his suspension or disbarment will not be entertained by the court until after he has been tried and convicted of the offense charged. Ex parte Tvler, 107 Cal. 78; 40 Pac. 33; Disbarment of Danford, 157 Cal. 425, 428; 108 Pac. 322. Disobedience of order of court. There is no limit to the power of the court to suspend or disbar an attorney, under the second subdivision, and it is not required to defer its action until after the convic- tion of the attorney on a criminal charge. Ex parte Tyler, 107 Cal. 78; 40 Pac. 33. Violation of oath. There is no ground for disbarment, where an attorney accepts payment for a just claim, in good faith, from an insolvent client, in goods at their fair valuation; and he is not acting in fraud of his client, a creditor of the in- solvent, where he, having a claim against the insolvent, who has paid him no re tainer, inadvertently as to such client, accepts a retainer from tne insolvent, and becomes his attorney. Disbarment of Luce, 83 Cal. 303; 23 Pac. 350. It is ground for disbarment, where he fraudulently induces his client to verify a false complaint (Peo- ple v. Pearson, 55 Cal. 472); and also where he betrays the confidences of his client, by the conversion of her property (Disbarment of Burris, 101 Cal. 624; 36 Pac. 101); and also where he falsely repre- sents himself as admitted to practice in a certain court, and accepts money to appear and contest an action therein ("Disbarment of Danford, 157 Cal. 425, 429; 108 Pac. 322); and also where he appears for the prosecution in a criminal action, and after- wards appears for the defense in the same action (Disbarment of Stephens, 77 Cal. 357; 19 Pac. 646); and also where, after having acted on one side of a cause, he takes the other side. Disbarment of Cowdery, 69 Cal. 32; 58 Am. Rep. 545; 10 Pac. 47. The encouragement of un just litigation, from motives of passion or interest, and for the mere purpose of gain, is also cause for disbarment (Dis- barment of Stephens, 77 Cal. 357; 19 Pac. 646) ; as is also the failure and refusal to pay monevs collected for his client (Ex parte Tyler, 107 Cal. 78; 40 Pac. 33; Dis- barment of Burris, 101 Cal. 624; 36 Pac. 101); and the procurement of a false and fraudulent affidavit of service of sum- mons, and inducing the court to accept such as genuine (Disbarment of Wharton, 114 Cal. 367; 55 Am. St. Rep. 72; 46 Pac. 147 CONVICTION OF FELONY. §288 172); and the procurement and presenta- tion to the court of a straw bond. Dis- barment of Tyler, 71 Cal. 353; 12 Pac. 289; 13 Pac. 169. Appearing without authority. Where an attorney appears as guardian ad litem and answers without an order of appoint- ment, he is guilty of contempt for misbe- havior, and subject to a proceeding for Temoval or suspension. Emeric v. Alva- jado, 64 Cal. 529; 2 Pac. 418. Lending name as attorney. The lending of his name, to be used as attorney or counselor, to another person, who is not an attorney and counselor, is cause for dis- barment. Alpers V. Hunt, 86 Cal. 78; 21 Am. St. Rep. 17; 9 L. R. A. 483; 24 Pac. ■846. Judicial officer practicing law. The prac- ticing of law by an attorney holding a judicial position is not ground for disbar- ment. Baird v. Justice's Court, 11 Cal. App. 439; 105 Pac. 259. Fraud upon court. An attorney commits a fraud upon the court, and will be dis- barred, where he applies to the court for ■admission in this state, when his applica- tion is based upon a certificate from a sis- ter state, which had been canceled and set aside before the application was made in this state. In re Maxey (unreported case No. 1252 Civ., decided by District Court of Appeals, First District, December 3, 1912). Notice of hearing. The attorney pro- ceeded against must be given notice of the charges against him, and an opportunity to be heard (People v. Turner, 1 Cal. 143; 52 Am. Dec. 295); and the court has no power to strike an attorney's name from the rolls without affording him an oppor- tunity to be heard. Fletcher v. Dainger- field, 20 Cal. 427. Summary jurisdiction over attorneys. See note 2 Am. St. Kep. 847. General powers of court to disbar. See note 114 Am. St. Rep. 839. Power of courts to disbar attorneys. See notes 5 Ann. Cas. 990; 15 Ann. Cas. 419. Causes and proceedings for disbarment. See note il.) .\m. Der. 33:{. Grounds for disbarment. See note 45 Am. St. Rep. 71. Rigiit of attorney to review of disbarment pro- ceedings. See note 10 Ann. Cas. •'> 14. Conviction of attorney for crime as condition precedent to disbarment therefor. See note 3 Ann. Cas. 847. Acquittal of criminal charge against attorney as defense to disbarment proceedings for same offense. See note 10 Ann. (jas. 887. Effect of pardon on right to disbar attorney convicted of felony. See nolo 16 L. R. A. (N. S.) 272. Acts not done in practice of profession when cause for disbarment. See note 42 .Am. T{ep. 557. Disbarment of attorney for act committed iu another jurisdiction. See note 17 Ann. Cas. 599. Wrongful retention of money by attorney as ground for disbarment. See notes 17 Ann. C'a.s. 692; 19 L. K. A. (N. S.) 414. Disbarment of attorney for fraud in procuring license to practice. See note 20 Ann. Cas. 212. ■Want of due respect toward court iu legal papers as ground for disbarment. See note 15 L. R. A. (N. S.) 525. Disbarment in one state or concealment of that fact as ground for disbarment in another state. See notes 19 L. R. A. (N. S.) 892; 24 L. R. A. (N. S.) 531. Criticism of decision of court as ground for dis- barment. See notes 15 Ann. Cas. 205; 17 L. R. -V. (N. S.) 572. Necessity for bad faith or fraudulent motive to justify disbarment. See note 18 L. R. A. 401. CODE COMMISSIONERS' NOTE. 1. Attor- ney entitled to trial before his name is stricken from the roll. The name of an attorney may be stricken from the roll of attorneys, but such act is not to be regarded in the light of a punish- ment for contempt, and the attorney is entitled to notice of the charges preferred against him, and have an opportunity afforded him for a de- fense. An appeal lies to the supreme court from the judgment of the district court in such mat- ters. People V. Turner, 1 Cal. 143; 52 Am. Dec. 295; and see also, where it was held that an at- torney could not be suspended by the district court if such attorney had been admitted and licensed by the supreme court, People v. Turner, 1 Cal. 190. An attorney is entitled to a trial before he can be stricken from the rolls. See Fletcher v. Daingerfield, 20 Cal. 427. 2. Exclusion of disloyal persons from practice, etc. Power of legislature. See also the cases of Cohen v. Wright, 22 Cal. 322, and Ex parte Yale, 24 Cal. 241. 85 Am. Dec. 62, wherein are discussed the rights of the legislature to exclude disloyal persons from the bar, and also to require from" all attorneys, after their admission, certain test oaths of loyalty to the government, etc. § 288. Conviction of felony. In case of the conviotion of an attorney or -counselor of a felony or misdemeanor, involvino- moral turpitude, the clerk of the court in which such conviction is had shall, within thirty days there- after, transmit to the supreme court a certified copy of the record of convic- tion. 661; 91 Pac. 598; People v. Treadwell, 6G Cal. 400; 5 Pac. 686. Appeal from judgment. An appeal from a judgment of conviction of a criminal of- fense suspends the judgment of the lower court for all jmrposes. Knowles v. Inches, 12 Cal. 212; Woodbury v. Bowman, 13 Cal. 634; People v. Frisbie, 26 Cal. 135; People V. Treadwell, 66 Cal. 400; 5 Pac. 686. It is not necessary that a certification of the transcript of conviction should be filed within thirtv days. Disbarment of Coffey, 123 Cal. 522; 56 Pac. 448. Legislation 8 288. 1. Enacted March 11, 1873. 2. Amended by Code Amdts. 1880, p. 57, (1) omitting a comma after "felony," and add- ing one after "misdemeanor," (2) changing the word "such" from "a," and (3) changing the word "shall" from "must." Conviction of felony. A proceeding •under this section, to revoke a license to practice law, because of the attorney's conviction of crime, cannot be instituted until the judgment of conviction becomes final. McKannay v. Horton, 151 Cal. 711; 121 Am. St. Eep. 146; 13 L. R. A. (N. S.) §§289-292 ATTORNEYS AND COUNSELORS AT LAW. 148 §289. Proceedings for removal or suspension. The proceedings to re- move or suspend an attorney and counselor, under the first subdivision of section two hundred and eighty-seven, must be taken by the court on the receipt of a certified copy of the record of conviction. The proceedings under the second, third, or fourth subdivision of section two hundred and eight3^-seven may be taken by the court for the matters within its knowledge, or may be taken upon the information of another. Legislation § 289. 1. Enacted March 11, 1873. visions" from "second subdivisions," and (2) 3. Amended by Code Amdts. 18SO, p. 58, adding the word "the" before "matters." (1) changing "second, third, or fourth subdi- §290. Accusation. If the proceedings are upon the information of an- other, the accusation must be in Avriting. Legislation § 290. 1. Enacted March 11, 18T3. 812. It must be made by some one who 3. Re-enacted by Code Amdts. 1880, p. 58, jjgg ^^ least some knowledge on which tO in amending Part I. hase his charges; an accusation upon in- Accusation. An accusation by another formation is clearly insufficient. In re must be on knowledge, in writing, and Hotchkiss, 58 Cal. 39. The one who veri- must state the matters charged; it must fies an accusation for the disbarment of also be verified by some person, to the ef- an attorney is deemed the accuser, who- fect that the charges stated are true. Dis- ever presents the charges. In re Collins, barment of Hudson, 102 Cal. 467; 36 Pac. 147 Cal. 8; 81 Pac. 220. §291. Verification. The accusation must state the matters charged, and be verified by the oath of some person to the effect that the charges therein contained are true. Legislation § 291. 1. Enacted March 11, 1873. son, 102 Cal. 467; 36 Pac. 812. It is suffi- 3. Re-enacted by Code Amdts. 1880, p. 58, dent, however, if the accusation is verified in amending Part I. ^^ ^^^^ person who swears to the truth of Verification. The verification cannot be the charge set forth. In re Collins, 14T made upon information and belief. In re c^l. 8; 81 Pac. 220. Hotchkiss, 58 Cal. 39; Disbarment of Hud- § 292. Citation of accused by publication. Upon receiving the accusa- tion, the court shall make an order requiring the accused to appear and an- swer 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 before the day appointed in the order. If it shall appear by affidavit to the satisfaction of the court or judge that the accused 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 the order to show cause, the court or judge may direct the service of a citation to the accused, requiring him ta appear and answer the accusation, to be made by publication in a newspaper of general circulation published in the county in which the proceeding is pending for thirty days. Such citation must be directed to the accused, recite the date of the filing of the accusation, the name of the accuser, and the general nature of the charges against him, and require him to appear and answer the accusation at a specified time. On proof of the publication of the citation as herein required the court shall have jurisdiction to proceed to hear the accusation and render judgment with like efiect as if an order to show cause and a copy of the accusation had been personally served on. the accused. Legislation § 292. 1. Enacted March 11, 1873, to be served upon the accused within a pre- and then read; "After receiving the accusation scribed time before the day appointed in the the court must, if in its opinion the case require order." it, make an order requiring the accused to ap- 3. Amended by Code Amdts. 1880, p. 58, pear and answer the accusation at a specified the first sentence of the present amendment then, time in the same or suljsequent term, and must constituting the entire section, cause a copy of the order and of the accusation 3. Amended by Stats. 1911, p. 979. 149 APPEARANCE — PLEADING TRIAL — JUDGMENT. §§ 293-299 § 293. Appearance. The accused must appear at the time appointed in the order, and answer the accusation, unless, for sufficient cause, the court -assign another day for that purpose. If he do not appear, the court may proceed and determine the accusation in his al)sence. Legislation g 293. 1. Enactod March 11, 1S73. clianging the period after "purpose" from a 2. Aimndi'd by Code Amdts. 18SO, p. 58, semicolon. § 294. Objections to accusation. The accused may answer to the accusa- tion either by objecting to its sufficiency or denying it. Legislations 294. 1. Enacted March 11, 1873. in amending Part I. 3. Re-enacted by Code Amdts. 1880, p. 58, § 295. Demurrer. If he object to the sufficiency of the accusation, the ►objection must be in writing, but need not be in any specific form, it being sufficient 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 entered mpon the minutes. LegLslation 8 295. 1. Enacted March 11, 1873. in amending Part I. 2. Ke-enacted by Code Amdts. 1880, p. 58, § 296. Answer. If an objection to the sufficiency of the accusation be not sustained, the accused must answer within such time as may be desig- nated by the court. Legislation § 296. 1. Enacted March 11, 1873, 3. Amended by Code Amdts. 1873-74, p. and then read: "If an objection to the suffi- 290, to read as at present. ciency of the accusation is not sustained, the 3. Re-enacted by Code Amdts. 1880, p. 58, accused must answer forthwith." in amending Part I. § 297. Trial. If the accused plead guilty, or refuse to answer the accusa- tion, the court shall proceed to judgment of removal or suspension. If he deny the matters charged, the court shall, at such time as it may appoint, proceed to try the accusation. Legislation § 297. 1. Enacted March 11, 1873. ^0 right tO jury trial. This section is 3. Amended by Code Amdts. 18SO, p. oo, ,., ,. i j ,,_ -i , , • changing "shall" from "must" in both instances. Constitutional, and the accused attorney is Proceedings on disbarment. Proceedings ^^^ entitled to a trial by jury. Disbar- • on disbarment are peculiar to themselves, "i^nt of Wharton, 114 Cal. 367; 55 Am. St. ;and are governed by specific code sections; Kep. 72; 46 Pac. 172, hence, findings are not required, the right ^^^^^ ^j attorney to be confronted with wit- to trial by jury is denied, the statute or nesses against him in disbarment proceedings. "limitations has no application, and the ac- See note 6 Ann. Cas. 582. cuser has no right to an appeal. Disbar- „ Eight to jury trial in disbarment proceedings. :ment of Danford, 157 Cal. 425, 430; 108 ^^^ """'^ ^'^°- ^^'- l^^^^' ^^^"■ Pac, 322, § 298, Reference to take depositions. The court may, in its discretion, •order a reference to a committee to take depositions in the matter. Legislation § 298. 1. Enacted March 11, 1873. in amending Part I, 2. Re-enacted by Code Amdts. 1880, p. 58, § 299. Judgment. Upon conviction, in cases arising under the first sub- division 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 attor- neys and counselors of the court, and that he be precluded from practicing as such attornej^ or counselor in all the courts of this state; and upon con- viction in cases under the other subdivisions of that section the judgment •of the court may be according to the gravity of the offense charged ; depriva- tion of the right to practice as attornej^ or counselor in the courts of this .state permanently, or for a limited period. §304 OTHER PERSONS INVESTED WITH MINISTERIAL POWERS. 150^ Legislation § 299. 1. Enacted March 11, 1872. 2, Amended by Code Amdts. 1873-74, p. 290 (1) adding the word "that" belore he be precluded," and (2) changing from "second sub- division of section two hundred and eighty- seven" the words "other subdivisions of that *3. Amended by Code Amdts. 1880, p. 58, (1)^ adding the word "shall" before "be stricken,' and (2) substituting a semicolon for a dash after "charged." Judgment. Unless the court is clearly satisfied of the guilt of the attorney, no judgment should be entered in the proceed- ing to disbar him, except a judgment of dismissal. Disbarment of Houghton, 67 Cal. 511; 8 Pac. 52. The court has power to render a judgment suspending an attor- ney from practice for a definite period and until the performance by him of a p»articu- lar condition. Disbarment of Tyler, 78- Cal. 307; 12 Am. St. Rep. 55; 20 Pac. 674. Statute of limitations. The bar of the- statute of limitations against a civil or criminal proceeding will not be considered, bv the court in disbarment proceedings. Ex parte Tyler, 107 Cal. 78; 40 Pac. 33. Appeal. An appeal may be taken from a judgment of disbarment in the superior- court. Disbarment of Wharton, 114 Cal.. 367; 55 Am. St. Eep. 72; 46 Pac. 172. CHAPTER II. OTHER PERSONS INVESTED WITH SUCH POWERS. § 304. Receivers, executors, administrators, and guardians. § 304. Receivers, executors, administrators, and guardians. The appoint- ment, powers, and duties of receivers, executors, administrators, and guar- dians are provided for and prescribed in parts two and three of this code. Receivers. See post, §§ 564-569. Limitation on power to appoint. The Executors and administrators. See post, Part effect of this section is to confine the "'Guardi^nL'.^PoI't!VM747-i809. Po^er to appoint a receiver to the court, ^ „ ,,, ^,, ^0^.0 or the judge thereof: an appointment by Legislation 8 304. 1. Enacted March 11, 1872. .•' ^ . . . -i rk -v^r,!^ ^ 2. Amended by Code Amdts. 1880. p. 59, add- a court commissioner IS VOld. Quibble V.. ing the words "executors, administrators." Trumbo, 56 Cal. 626. 3. Repeal by Stats. 1901, p. 124; unconsti- tutional. See note ante, $ 5. PART 11. CIVIL ACTIONS. Title I. Form of Civil Actions. §§307-309. II. Time of Commencing Civil Actions. §§ 312-363. III. Parties to Civil Actions. §§ 367-390. IV. Place of Trial of Civil Actions. §§ 392-400. V. Manner of Commencing Cwil Actions. §§ 405-416. VI. Pleadings in Civil Actions. §§ 420-476. VII. Provisional Remedies in Civil Actions. §§ 478-574. VIII. Trial and Judgment in Civil Actions. §§ 577-6801^. IX. Execution of Judgment in Civil Actions. §§ 681-721. X. Actions in Particular Cases. §§ 726-827. XL Proceedings in Justices' Courts. §§ 832-926. XII. Proceedings in Civil Actions in Police Courts. §§ 929-933. XIII. Appeals in CrviL Actions. §§ 936-980. XIV. Miscellaneous Provisions. § § 989-1059. (151) 153 FORM OF CIVIL ACTIONS. §§307-309 TITLE I. FORM OF CIVIL ACTIONS. 307. 308. One form of civil action only. Parties to actions, how designated. § 309. Special issues not made by pleadings, how tried. § 307. One form of civil action only. There is in this state but one form of civil actions for the enforconient or protection of private rights and the redress or prevention of private Avrongs. 38 Cal. 514, 520; 99 Am. Deo. 423. Tho general principles, however, which o;overn actions are not abolished, but remain the same as before the code. Lubert v. Chau- viteau, 3 Cal. 458; 58 Am. Dec. 415. The distinction between law and equity was not intended to be abolished; only the form, not the substance, of actions. De Witt V. Hays, 2 Cal. 463; 56 Am. Dec. 352; Wiggins V. McDonald, 18 Cal. 126; Lux v. Haggin, 69 Cal. 255; 4 Pac. 919; 10 Pac. 674. The principles upon which the rights of the parties are to be determined remain. Spect V. Spect, 88 Cal. 437; 22 Am. St. Rep. 314; 13 L. R. A. 137; 26 Pac. 203. The rules of pleading of the old system are applied, where not inconsistent with the spirit of the code. Rowe v. Chandler, 1 Cal. 167. Thus, an action for money had and received may be maintained against one who holds the plaintiff's money with- out right, and under an implied promise to repaj'' the same. Gray v. Ellis, 164 Cal. 481; 129 Pac. 791. Word "action," construed. See note post, § 363. Effect of release of one joint tort-feasor. In an action ex delicto against several wrong-doers, charged with the commission of a joint tort, the release of one of the joint defendants is the release of all, not- withstanding there was an agreement to the contrary. Flynn v. Manson, 19 Cal. App. 400; 126 Pac. 181. Legislation g 307. Enacted March 11, 1873; based on Practice Act, § 1 (New Yorli Code, § f)9), which had (1) "shall be" instead of "is," (2) "action" instead of "actions," and (3) "right" instead of "rights." But one form of action. There is but one form of civil action for the enforce- ment or protection of private rights and the redress or prevention of private wrongs (Jones v. Steamship Cortes, 17 Cal. 487; 79 Am. Dec. 142; Wiggins v. McDon- ald, 18 Cal. 126; Walsh v. McKeen, 75 Cal. 519; 17 Pac. 673; Hurlbutt v. Spaulding Saw Co., 93 Cal. 57; 28 Pac. 795; Rowe v. Blake, 99 Cal. 167; 37 Am. St. Rep. 45; 33 Pac. 864; Barbour v. Flick, 126 Cal. 62S; 59 Pac. 122; Lux v. Higgins, 69 Cal. 255; 4 Pac. 919; 10 Pac. 674; Williams v. South- ern Pacific R. R. Co., 150 Cal. t;24; 99 Pac. 599); and any relief may be granted which is consistent with the facts stated in the complaint. Walsh v. McKeen, 75 Cal. 519; 17 Pac. 673. The relief asked is not to be denied because it might have been sought under a different form of action. Merri- man v. Walton, 105 Cal. 407; 45 Am. St. Rep. 50; 30 L. R. A. 786; 38 Pac. 1108. The code has reduced all pleading to one common system. Bowen v. Aubrev, 22 Cal. 566; Huributt v. Spaulding Saw Co., 93 Cal. 55; 28 Pac. 795; Carpentier v. Bren- ham, 50 Cal. 549; Merriman v. Walton, 105 Cal. 403; 45 Am. St. Rep. 50; ," L. R. A. 786; 38 Pac. 1108; Thompson v. Laughlin, 91 Cal. 313; 27 Pac. 752; Cordier v. Schloss, 12 Cal. 143; Bostic v. Love, 16 Cal. 69; Kimball v. Lohmas, 31 Cal. 154. Legal relief and equitable relief are adminis- tered in the same forum. Grain v. Aldrich, CODE COMMISSIONERS' NOTE. Probate pro- ceedings are not civil actions (TOstate of Scott, lo Cal. 220), and they are, therefore, placed under the division (Part III) of this code relating to special proceedings. § 308. Parties to actions, how designated. In such action the party com- plaining is known as the plaintifiP , and the adverse party as the defendant. Legislation § 308. Enacted March 11, 1873; tion is made for letters of administration, based on Practice Act, § 2 (New York Code, • ,ij ^^ Mnttpr nf tbp F^l-itp nf §70), which had the words "shall be" instead ^^, in tne flatter ot tne J:.state ot of "is." Deceased. O Brien v. ^Nelson, 164 Cal. Title of proceeding in probate. The cor- ^'^J ^^^ ^^^- ^^^' rect title of a cause, in which an applica- § 309. Special issues not made by pleadings, how tried. A question of fact not put in issue by the pleadings may be tried by a jury, upon an order 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. Legislation § 309. Enacted March 11, 1873; trial may be made, stating distinctly and plainly based on Practice Act, § 3, which read: "When the question of fact to be tried; and such order a question of fact not put in issue by the plead- Bhall be the only authority necessary for a trial." ings is to be tried by a jury, an order for the §312 TIME OF COMMENCING ACTIONS. 154 TITLE 11. TIME OF COMMENCING CIVIL ACTIONS. Chapter I. Time of Commencing Actions in General. § 312. II. Time of Commencing Action for Eecovery of Real Property. §§ 315-328. III. Time of Commencing Actions Other than for Recovery of Real Property. §§ 335-349. rV. General Provisions as to Time of Commencing Actions. §§ 350-363. CHAPTER I. TIME OF COMMENCING ACTIONS IN GENERAL. § 312. Commencement of civil actions. § 312. Commencement of civil actions. Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute. Legislation § 312. 1. Enacted March 11, 1873; ■based on Stats. 1850, p. 343. 3. Amended by Stats. 1897, p. 16, (1) omit- ting the words "without exception" after "civil actions," and (2) changing the word "unless from "except." Construction of section. When one is under disability, or when from any cause the right of action is not perfect, the stat- ute does not begin to run. Feeney v. Hincklev, 134 Cal. 467; 86 Am. St. Rep. 290; 66>ac. 580. The only statutory pro- vision prescribing a rule different from that contained in this section seems to be I 359, post, which refers solely to actions against directors or stockholders of cor- porations. Pryor v. "Winter, 147 Cal. 554; 109 Am. St. Rep. 162; 82 Pac. 202. Upon an action against stockholders to enforce their liability, the cause of action accrues with the creation of the debt sought to be enforced (Redington v. Cornwell, 90 Cal. 49; 27 Pac. 40; Hunt v. Ward, 99 Cal. 612; 37 Am. St. Rep. 87; 34 Pac. 335), and the reason for this seems to be, that such an obligation is a creature of statute, and not a contract. Green v. Beekman, 59 Cal. 545; Moore v. Boyd, 74 Cal. 167; 15 Pac. 670; Redington v. Cornwell, 90 Cal. 49; 27 Pac. 40; Hunt v. Ward, 99 Cal. 612; 37 Am. St. Rep. 87; 34 Pac. 335. Payment of a cor- poration note by the sureties creates a new and distinct debt against the corporation and its stockholders, and the statute be- gins to run against the sureties from the date of the payment of the debt. Ryland V. Commercial "etc. Bank, 127 Cal. 525; 59 Pac. 989. Application of title to actions against directors or stockholders of corporations. See note post, § 359. Extension of statute. An extension of the period of limitation of an action is valid, when made before the former period of limitation has expired. Weldon v. Rogers, 151 Cal. 432; 90 Pac. 1062. Cause of action must accrue to set stat- ute in motion. The accrual of a cause of action sets the statute of limitations run- ning (Swamp Land District v. Glide, 112 Cal. 85; 44 Pac. 451; Leonard v. Flynn, 89 Cal. 535; 23 Am. St. Rep. 500; 26 Pac, 1097); but this does not imply the exist- ence of a person legally competent to en- force the action. Tynan v. Walker, 35 Cal. 634; 95 Am. Dec. 152. When cause of action accrues. The gen- eral rule is, that the statute of limitations commences to run within the prescribed period after the cause of action has ac- crued (Hunt v. Ward, 99 Cal. 614; 37 Am. St. Rep. 87; 34 Pac. 335; San Diego v. Higgins, 115 Cal. 170; 46 Pac. 923); but this general rule is subject to such different rules as may be prescribed for special cases. Cook v. Ceas, 143 Cal. 222; 77 Pac. 65. Except in cases of fraud, the time of the act, and not the time of the discovery, sets the statute in motion. Lightner Min- ing Co. V. Lane, 161 Cal. 689; Ann. Cas. 1913C, 1093; 120 Pac. 771. Trustee must repudiate trust. In the case of a trustee, only an unequivocal re- pudiation of the trust by him, with knowl- edge of this brought home to the bene- ficiaries of the trust, can set the statute in motion in favor of the trustee. Elizalde V. Murphy, 163 Cal. 681; 126 Pac. 978. Judgment must be final. A cause of action upon a judgment does not accrue until the judgment has become final and admissible in evidence; that is, after the lapse of the period within which an appeal might be taken from the judgment, if none is taken therefrom, or after final de- termination following an appeal so taken. Feeney v. Hinckley, 134 Cal. 467; 86 Am. St. Rep. 290; 66 Pac. 580. Upon a judg- ment of a probate court for partition of real estate, the cause of action accrues 155 COMMENCEMENT OF CIVIL ACTIONS. §312 ■pon entry of judgment. Cortez v. Su- perior Court, 86 Cal. 274; 21 Am. St. Kep. 37; 24 Pac. 1011; White v. Clark, 8 Cal. 512,513. Action for damages. At law, a cause of action accrues whenever there is an injury for which the law has provided a remedy; but in many eases in equity, such as an action for partition by tenants in common (Love V. Watkins, 40 Cal. 547; 6 Am. Eep. 624), and an action to cjuiet title to real estate, this is not true. Arrington v. Lis- com, 34 Cal. 365; 94 Am. Dec. 722. A cause of action for damages for the breach, by abandonment, of a building contract, accrues at the time of such abandonment. Bacigalupi v. Phcenix Bldg. etc. Co., 14 Cal. App. 632; 112 Pac. 892. Obligations payable on demand. Upon an agreement to pay money on demand, the cause of action accrues on the date of the delivery of the agreement (Halleck v. Moss, 22 Cal. 266); and upon a note pay- able upon demand, it accrues upon the exe- cution and delivery of the note. Ziel v. Dukes, 12 Cal. 479; Davis v. Eppinger, 18 Cal. 378, 79 Am. Dec. 184; Bell v. Sackett, 38 Cal. 407. The same is true of a certifi- cate of deposit. Vrummagim v. Tallant, 29 Cal. 503; 89 Am. Dec. 61. An action to recover dividends accrues on the refusal of the corporation to pay. Bills v. Silver King Mining Co., 106 Cal. 9; 39 Pac. 43. An in- terest coupon, attached to a bond, is an independent obligation; and, when detached from the bond and transferred to another than the holder of the bond, the statute begins to run from the time of its matu- rity. California Safe Deposit etc. Co. v. Sierra Valleys Ey. Co., 158 Cal. 690; Ann. Cas. 1912A, 729; 112 Pac. 272. Conditional contracts. The cause of ac- tion for the breach of a conditional or con- tingent contract does not accrue until the accomplishment of the condition or the happening of the contingency. Bartlett v. Odd Fellows' Sav. Bank, 79 Cal. 218, 12 Am. St. Eep. 139; 21 Pac. 743. The cause of action upon an agreement to give a mortgage accrues upon the failure to tender the mortgage upon the date agreed. O'Con- nor v. Dingley, 26 Cal. 11; Jerome v. Steb- bins, 14 Cal. 457; Green v. Palmer, 15 Cal. 411; 76 Am. Dec. 492. An action for com- missions for the sale of land accrues only after the sale is consummated, or tender of performance of contract to sell. Dinkel- epiel V. Nason, 17 Cal. App. 591; 120 Pac. 789. A promise to pay a debt "when able" is conditional, and no cause of action ac- crues thereon until the debtor is able to pay; until then the statute does not com- mence to run. Van Buskirk v. Kuhns, 164 Cal. 472; 129 Pac. 587. Where the breach of a condition is overlooked or waived, and there is no obligation to pay money, the rights of the parties continue as before, without regard to the breach, and the stat- ute does not commence to run. Congrega- tional Church Bldg. Society v. Osborn, 153 Cal. 197; 94 Pac. 881. Effect on debt of extinguishment of lien. Although tlie lien of a mortgage is extin- guished by the barring of the debt by the statute of limitations, yet the mortgagor cannot, without paying his debt, quiet his title nor maintain ejectment against his mortgagee in possession. Puekhaber v. Henry, 152 Cal. 419; 125 Am. St. Eep. 75; 14 Ann. Cas. 844; 93 Pac. 114. Presumption of demand. Whenever a de- mand is necessary to put the adverse party in default, he cannot indefinitely and un- necessarily extend the bar of the statute by deferring such demand. Thomas v. Pa- cific Beach Company, 115 Cal. 136, 46 Pac. 899; Meherin v. San Francisco Produce Ex- change, 117 Cal. 215; 48 Pac. 1074; Witt- man V. Board of Police Commissioners, 19 Cal. App. 229; 125 Pac. 265; Vickrey v. Maier, 164 Cal. 384; 129 Pac. 273. Where there is a personal liability imposed upon a devisee, by the will, for the payment of money, the beneficiary is entitled to bring an action to recover the money of the dev- isee, if not paid within a reasonable time after the liability accrues. Keir v. Keir, 155 Cal. 96; 99 Pac. 487. Actions on indemnity. The cause of ac- tion on an indemnity bond against dam- ages does not begin to run until the in- demnified person has actually paid the damages against which he was indemnified (Lott V. Mitchell, 32 Cal. 23; Oaks v. Schiefferly, 74 Cal. 478; 16 Pac. 252); but on a bond against liability for damages, the cause of action accrues as soon as a judgment has been rendered for damages. McBeth V. Mclntyre, 57 Cal. 49. Specific performance. The statute does not begin to run against an action to en- force the specific performance of a contract until a breach thereof (Vickrey v. Maier, 164 Cal. 384; 129 Pac. 273); but it com- mences to run, in such a case, upon the vio- lation of an implied obligation. Hopkins V. Lewis, 18 Cal. App. 107; 122 Pac. 433. Warranty and guaranty. An action upon an implied warranty of chattels accrues when the vendee is disturbed in his posses- sion. Gross V. Kierski, 41 Cal. 111. The liability of the guarantor of a note secured by mortgage accrues at the maturity of the note, regardless of the exhaustion of the mortgage security. Woolwine v. Storrs, 148 Cal. 7; 113 Am. St. Eep. 183; 82 Pac. 434. Action against remainderman. If a charge is imposed upon an estate in re- mainder, and the liability of the remain- derman does not mature until the expira- tion of a life estate, the statute does not commence to run in his favor until that time (Keir v. Keir, 155 Cal. 96; 99 Pac. 4S7); and the possession of a tenant can- not be adverse to the remainderman until the termination of the life estate. Pryor §312 TIME OP COMMENCING ACTIONS. 156 Y. Winter, 147 Cal. 554; 109 Am. St. Eep. 162; 82 Pac. 202. Action on insurance policy. No action can be maintained upon an insurance policy until the expiration of the time after the loss fixed by the policy. Irwin v. Insurance Company, 16 Cal. App. 143; 116 Pac. 294. A condition in an insurance policy, that no recovery can be had unless suit is brought within a given time, is valid, where such time is not, in itself, unreasonable. Teb- bets v. Fidelity and Casualty Co., 155 Cal. 137; 99 Pac. 501. Statute may be waived. The statute of limitations is a statute of repose: it grants a mere personal right, which may be waived either in whole or in part. Tebbets v. Fidelity and Casualty Co., 155 Cal. 137; 99 Pac. 501; Archer v. Harvey, 164 Cal. 274; 128 Pac. 410. No distinction, upon the ground of public policy, exists between the right of a party to waive the plea of the statute of limitations as a defense to an action, and his right to waive a portion of the time granted by the statute for the commencement of an action. Tebbets v. Fidelity and Casualty Co., 155 Cal. 137; 99 Pac. 501. Pleading the statute. If the complaint shows on its face that the statute has run, the defendant may set up the bar, either by demurrer or answer; but if it does not show on its face that the statute has run, the defendant must plead the defense of the statute by answer. California Safe De- posit etc. Co. V. Sierra Valleys Ey. Co., 158 Cal. 690; Ann, Cas. 1912A, 729; 112 Pac. 272. Discretion of court. Ignorance of injury will not prevent the running of the statute (Lightner Mining Co. v. Lane, 161 Cal. 689; Ann. Cas. 1913C, 1093; 120 Pac. 771); but the court has discretion to permit the stat- ute to be pleaded, and, in its discretion, may permit the plea to be amended, by designating the particular subdivision of the section relied upon. St. Paul Title etc. Co. V. Stensgaard, 162 Cal. 178; 121 Pac. 731. Estoppel to plead statute. One may, by his conduct, estop himself from pleading the statute. Phillips v. Phillips, 163 Cal. 530; 127 Pac. 346. Laches may bar remedy. Stale demands will not be aided, where the claimant has slept upon his rights for so long a time and under such circumstances as to make it inequitable to enter upon an inquiry as to the validity thereof; where such is the con- dition, the demand is, in a court of equity, barred by laches (Suhr v. Lauterbach, 164 Cal. 591; 130 Pac. 2); but laches for a time less than the statutory period is no bar, where the defendant is not prejudiced. Shiels V. Nathan, 12 Cal. App. 604; 108 Pac. 34. Suit for the death of one caused by wrongful act of another. See note post, §377. When the statute commences to run. See note post, § 337. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 343. 1. Statute of limitations not retroactive. Stat- utes of limitation do not act retrospectively; they do not begin to run until they are passed. Thus an act of April 2, 1855, limiting the lime for the commencement of an action on a foreign judg- ment to two years could not be pleaded in an ac- tion brought in 1856 on a foreign judgment obtained in 1847. Nelson v. Nelson, 6 Cal. 430; see particularly Scarborough v. Uugan, 10 Cal. 305; also Billings v. Hall, 7 Cal. 1; Billings v. Harvey, 6 Cal. 381. 2. When statute as amended begins to run. By the state constitution the amendment of a statute operates as an absolute repeal of the sec- tion amended (Const., art. iv, §25), notwith- standing the amendment takes nothing away fron» the old law, but simply re-enacts the section amended, with the addition of a proviso in cer- tain cases. The act of April, 1855, amending § 6 of the statute of limitations of 1850, by re- enacting the section, with the addition of a pro- viso concerning actions under Spanish or Mexi- can titles, repeals the section of the law of 1850 in toto. The re-enactment creates anew the rule of action, and even if there was not the slightest difference in the phraseology of the two, the lat- ter alone can be referred to as the law, and the former stands, to all intents, as if absolutely and expressly repealed. Thus it would follow that the act of 1855, in this case, would be the only statute of limitations, and the time fixed therein runs only from the date of that act. Billings v. Harvey, 6 Cal. 381; see also Clarke v. Huber, 25 Cal. 593. 3. Vested rights. Obligations of contract not impaired. An amendatory act to the statute of limitations does not divest any rights vested under the old law, for statutes of limitation atTect the right, and not the remedy. See Billings v. Hall, 7 Cal. 1. But it was held that a right without a remedy is practically no rifrht at all, and that a statute of limitations can only be con- strued to anply (in the case of foreign judg- ments) to judgments not in esse at the time of the passage of the act. Scarborough v. Dugan, 10 Cal. 305; see, however, Civ. Code, "Obliga- tion," § 1427. 4. Fraudulent concealment. Statutes of limi- tation are passed to prevent the production of Btale claims when, from the lapse of time, it has become difficult or impossible to furnish the requisite proof to defeat them. They proceed upon the theory that the delay, for a fixed period, to assert one's claim, raises a presumption of settlement, and that a party ought not to be after- wards harassed respecting it. They are not in- tended to protect a party who has, by fraudulent concealment, delayed the assertion of a right against him until after the expiration of the period limited by the statute. The question, whether a fraudulent concealment of the fact, upon the existence of which the cause of action accrues, would avoid the statute of limitations, has fre- quently arisen, and in its decision thers is much conflict of opinion. In courts of equity it is the settled doctrine that such concealment will pre- vent the operation of the statute, and it is only in the application of the doctrine to suits at law that the diversity of opinion exists. See cases cited and commented on, Kane v. Cook, 8 Cal. 449. "In this diversity of opinion," say the court, "we are free to adopt the rule which will best tend to advance justice and prevent the per- petration of fraud: and we therefore hold, that in all cases a fraudulent concealment of the fact, upon the existence of which the cause of action accrues, is a good answer to the plea of the statute of limitations. By the system of practice in this state there is no replication to the answer. The fraudulent concealment cannot, therefore, be replied to by pleading, but it may be established by proof on the trial, and will then just as effectually avoid the plea of the statute." Kane v. Cook, 8 Cal. 449. 5. When cause of action accrues. The statute provides that civil actions shall be commenced .157 COMMENCEMENT OF CIVIL ACTIONS. §312 •within certain periods therein prescribed, "after the cause of action shall have accrued." The clause "after the cause of action shall have ac- crued" does not, in our judgment, imply, in addi- tion, the existence of a person legally competent to enforce it by suit. If it did, why in subse- quent parts of the statute provide that the statute shall not run in certain cases specified, which are excepted from the operation of the statute, be- cause the persons in whose favor the cause of action exists are legally incompetent to sue '. Obviously, if the term "right of action" implies the existence of a person competent to commence an action, there was no occasion for special pro- visions relieving persons not competent from the operation of the statute. Nothing further need have been said, for the courts, after having as- certained the existence of a right of action, would have next inquired whether there was any person in existence legally competent to enforce it by suit, and computed the time accordingly. Again, if it was the intention to provide thai the statute should run only where tliere is both a rir.ht of action and a person to assert it, why not insert a .provision to that effect in general terms, and not take the hazard, by going into details, of omit- ting cases which oupht, on the score of equal equities, to be included? But, again, if we as- sume that the term "cause of action" contains also a general implication in relation to disabil- ities, what, in view of the subsequent specification of disabilities, becomes of the settled rule, that general words are. limited by special words sub- sequently emnloyed, or the maxim, Exprpssio unius est exclusio alterius? The tv/enty-fourth section provides an exception, where the parly entitled to bring an action dies after the cause of action accrued, and before the expiration of the time allowed for commencing the action, and also where the party against wh'im an action may be brought dies before the expiration of the time allowed, but no provision is made excepting a case where the party who would have been en- titled to sue dies before the cause of action has accrued. Nor do we perceive any substantial reason why any exception should be made. If the cause of action does not accrue until after the death of the party who would have been entitled to sue, the persons interested in his estate — his creditors, heirs, and devisees — have the full time allowed Ijy the statute in which to mo\ e in the matter to obtain a grant of administration and commence an action. Even if we recognized the doctrine of inherent equity, or implied exception, we are unable, independent of tlie judicial dogma that the term "cause of action" also implies a person to sue, to perceive that this case falls within the principle. It certainly has less equity than the case where the cause of action has ac- •crued in the lifetime of the party; yet in such a case the statute runs on, according to the cases to which we have referred, even though there may not be forty-eight hours of the limitation re- maining at the time of his death. The legislature of this state seems to have considered this latter result of the English statutes as unreasonable, and has therefore provided, as we have seen, that the time allowed to sue shall be extended, if necessary, not to exceed six months from his death, thus affording time to obtain a grant of administration and sue. Tynan v. Walker, 35 Cal. 643; 95 Am. Dec. 152. 6. When cause of action accrues, trustee and ■beneficiary. Where a person holds land in trust for another, and there is an apreement that the trustee shall convey it to the beneficiary upon the payment of the purchase-money, a cause of action does not arise to compel the execution of the trust until such money is naid to the trustee, and the statute of limitations does not commence to run until that time. Millard v. Hathaway, 27 Cal. 120. 7. Contribution, action for, when statute be- gins to run. In an action for contribution be- tween joint obligors, the statute of limitations does not begin to run until after the payment of the debt by the plaintifT. Sherwood v. Dunbar, 6 Cal. 53. 8. When begins to run against judgment. The statute of limitations commences to run against a judgment only from the time of the final entry thereof. Parljp v. Williams, 7 Cal. 247. 9. Action to recover a reward offered by publi- cation, when statute begins to run. In an ac- tion to recover a reward olft-iid "for such infor- mation as would lead to the arrest and conviction of the ofleiider," the statute of limitations could not begin to run until after trial and conviction. Ryer v. Stockwell, 14 Cal. 1 :j4 ; 7.; Am. Dec. 6.34. 10. Fraud. Limitation of an action to set aside deed fraudulently obtained from a non compos mentis. The statute does not run against a grantor's right to commence an action to set aside a deed obtained by fraud from him when he wa* insane, until he recovers his reason and dis- covers what he has done. Crowther v. Rowland- son, 27 Cal. 37G. 11. Fraud. In cases of fraud, when the stat- ute of limitations commences to run. See Oak- land V. Carpentier, 13 Cal. 540. • 12. Actions for relief on ground of fraud. Statute does not begin to run against time for commencing action for relief on ground of fraud until the discovery of the fraud. Currev v. Allen, 34 Cal. 257. 13. Monthly salary, where term Is for one year. An officer elected for a term of one year, with a monthly salary, the statute does not commence to run against any portion of his salary until the expiration of his yearly term. Rosborough V. Shasta River Canal Co., 22 Cal. 556. 14. Banker's certificate of deposit. If has been held tliat the statute runs against a banker's cer- tificate of deposit, payable on demand from the date of the same, and no special demand is ne- cessary. Brumma.jrim v. Tallant, 29 Cal. 503: 89 Am. Dec. 61. In this respect a certificate of deposit and a promissory note are the same. Id. 15. When cause of action accrues on promis- sory note. Payment of interest on note afier the note has become due does not prolong time of payment of note so as to affect the statute of limilations. A note payable six months from date, with interest monthly in advance, contained the following clause : "In case said interest, or any part thereof, should become due and remain unpaid after demand, then the mortgage given by me, of even date herewith, to secure the pay- ment of this note, may be foreclosed." The mort- gage contained a corresponding provision. The prompt payment of the interest on demand did not prolong the time for the payment of the note beyond the time specified therein; and although the interest was paid until a year before the commencement of the action to foreclose the mort- gage, yet more than four years and six months have elapsed since the date of the note; held, that the note was barred by tlie statute of limi- tations. Pendleton v. Rowe, 34 Cal. 150. 16. Promissory note. Part payments. A part payment indorsed upon a promissory note, made before or after the expiration of the period fixpd by statute of limitations, does not avoid the bar of the statute. Heinlin v. Castro, 22 Cal. 100. 17. Promissory note payable on failure to pay interest, etc. Upon a note payable six months after date, with interest payable monthly, and further providing that, "in case default be made in any payment of interest when the same shall have become due, then the whole amount of prin- cipal and interest to become due and payable im- mediately upon such default," the cause of ac- tion, within the true meaning of the statute of limitations, arises at the expiration of the credit fixed by the note, and not at the time when de- fault is made in the payment of the interest. Belloc V. Davis, 38 Cal. 247. 18. Promissory note, with days of grace. In • computing the time at which the statute of limi- tations commences to run on promissory notes, the day on which the note becomes due is ex- cluded in all cases when days of grace are al- lowed. The statute runs from the last day of grace, excluding the day on which the note falls due. Bell v. Sackett, 38 Cal. 409. 19. Agreement not to sue on a demand. If a party enters into a valid agreement, in writing, with the defendant, not to sue upon a particular demand, which he holds, until the happening of a particular event, the running of the statute is suspended until the event occurs. Smith v. Law- rence, 38 Cal. 24; 99 Am. Dec. 344. 20. Covenant of warranty for quiet enjoyment. Eviction. Where a tenant in possession is evicted, §312 TIME OF COMMENCING ACTIONS. 158^ the statute tpgins to run at the time of the eviction, whether such eviction be actual or con- structive. McGary v. Hastings, 39 Cal. 360; 2 Am. Rep. 456. 21. No presumption of payment raised by stat- ute. It was formerly held that statutes of limi- tation proceeded upon a presumption of previous payment, and that the effect of an acknowledg- ment was to rebut this presumption and place the debt upon its original footing. This view is not exploded, and the statute is universally regarded rs one of repose, the benefit of which may be re- linquished by the party interested, but cannot he taken from him without his consent. If two or more persons are bound, the same protection is afforded to each, and an acknowledgment by one is not available against the other, unless he had authority to make it. McCarthy v. White, 21 Cal 502; 82 Am. Dec. 754. 22. Action to enforce or establish a trust Where a trust attached to a legal title acquired through a sheriff's deed, the statute does not be gin to run until the execution of the deed. Cur rey v. Allen, 34 Cal. 257. 23. Trusts. Trustee and beneficiary. The stat ute of limitations does not run against an ex press continuing trust until the trustee places himself in hostility to the trust. Schroeder v, Jahas, 27 Cal. 274; Miles v. Thorne, 38 Cal. 335 99 Am. Dec. 384. As between trustees and cestui que trust, in the case of an express trust, the statute of limitations does not begin to run until the trustee repudiates the trust by clear and unequivocal acts or words, and claims thence- forth to hold the estate as his own, not subject to any trust, and stich repudiation and claim are brought to the knowledge of the cestui que trust. Hearst v. Pujol, 44 Cal. 230; Baker v. Joseph, 16 Cal. 173. See also Ord v. De La Guerra, 18 Cal. 67. 24. Trustee and beneficiary. Where a party holds the legal title of land as security for money due him by one having the equitable es- tate, he cannot, by reason of the statute of limi- tations, be compelled to accept the money and execute a conveyance of the land after four years from the time the money falls due; yet, if he voluntarily receives the money when tendered, after that time he is not discharged by the stat- ute from executing the conveyance and giving a deed to the beneficiary. Millard v. Hathaway, 27 Cal. 120. 25. Trustee and beneficiary. The statute does not run in favor of a trustee as against the bene- ficiary while the beneficiary is in possession of the estate, and there is no adverse claim made by the trustee. Love v. Watkins, 40 Cal. 548; 6"Am. Rep. 624. 26. Vendor and vendee. The statute does not run asainst a vendee's right to enforce a specific performance (execution of a deed, etc.), so long as he remains in possession with the acquiescence of the vendor. Love v. Watkins, 40 Cal. 548; 6 Am. Reo. 624. 27. Equitable and legal actions alike barred. The statute of limitations is applicable alike to all causes of actions, whether in equity or at law. Boyd V. Blankman, 29 Cal. 19; 87 Am. Dec. 146. 28. Cases excepted from statute of limitations. It was held "that statutes of limitation are to be strictly construed." In Demarest v. Wynkoop, 3 Johns. Ch. 146. 8 Am. Dec. 467, it was held that the court could make no exception in favor of infants, where the statute had made none. Said Mr. Chancellor Kent (p. 142): "The doctrine of inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long and uniformly exploded. General words in the statute must receive a gen- eral construction; and if there be no express ex- ception, the court can create none." It was agreed, without contradiction, in Stowell v. Zouch, Piowd. 369b. 371c, that the general provision in statute of fines would have barred infants, ferae coverts, and the other persons named in the pro- viso, equally with persons under no disability if they had not been named in the exception or saving clause. So in Dupleix v. De Roven. 2 Vern. 540. The lord keeper thought it very rea- sonable that the statute of limitations should not run when the debtor was beyond the sea; but" there was no saving in the case. He could not resist the plea of the statute. See also Beck- ford v. W^ade, 17 Ves. Jr. 87; Buckinghamshire v. Drury, Wilmot's Opinions, p. 177, §194; Halt V. Wybourn. 2 Salk. 420; Aubry v. Fortescue, 10 Mod. 206, where it was held that "though the- courts of justice be shut by civil war, so that no original could be sued out, yet the statute of limi- tations continued to run." Tynan v. Walker, 35 Cal. 640; 95 Am. Dec. 152. 29. Mortgages. Mortgage barred when note ir- barred. "Vi'here an action upon a note, secured by a mortgage, is barred by the statute of limita- tions, the mortgagee has no remedy upon the mortgage ; and though he can follow distinct reme- dies upon the note or mortgage, the limitatioit prescribed is. in both cases, the same. The stat- ute of limitations of this state differs essentially from the statutes of James I, and from the stat- utes of limitation in force in most of the other states. Those statutes apply in their terms only to particular legal remedies, and courts of equity hold themselves not bound by them, except in cases of concurrent jurisdiction, but act merely by analogy to them. Those statutes, as a gen- eral thing, also apply, so far as actions upon written contracts not of record are concerned,, only to actions upon simple contracts; that is, contracts not under seal, fixing the limitation at six years, and leaving actions upon snecialties to be met by the presumption established by the rule of the common law, that after the lapse of twenty years the claim has been satisfied. In those statutes where specialties are mentioned, the limitation is generally fixed at either fifteen or twenty years. The case is entirely different in this state. Here the statute applies equally to actions at law and to suits in equity. It is directed to the subject-matter, and not to the form of the action, or the forum in which the ac- tion is prosecuted. Nor is there any distinctioa in the limitation prescribed between simple con- tracts in writing and specialties. Where a note is secured by mortgage upon real property, and subsequently, after the remedy on the note is- barred by the statute, the mortgagor executes s second mortgage to a third party, such third party can interpose the plea of the statute of limitations in a suit to foreclose the first mort- gage, and thus secure priority for his subsequent mortgage; and this, even thotigh the mortgagor- had, after the execution of the second mortgage, and after the note was barred, indorsed on the first note that he renewed, revived, and agreed to pay the same. A mortgagor, after disposing of the mortgaged premises by deed of sale, loses all control over them. His personal liability thereby becomes separated from the ownership of the land, and he can, by no subsequent act, create or revive charges upon the premises. He is, as- to the premises, henceforth a mere stranger. And if, instead of selling the premises, he execute a second mortgage upon them, he is equally without power to destroy or impair the eificacy of the lien thus created. As a general rule, the plea of the statute of limitation* is a personal privilege of the party, and cannot be set up by a stranger. This is true with respect to personal obligations, which concern only the party him- self, or with respect to property which the party possesses the power to charge or dispose of. But with respect to property placed by him beyond his control, or subjected by him to liens, he has no such personal i)rivilege. He cannot, at his pleasure, affect the interests of other parties. Whether, wh-ire a party revives a note secured by mortgage upon real estate, after the note is- barred, he thereby revives the mortgage, was a question raised, but not decided." See syllabus in Lord v. Morris, 18 Cal. 482, 483; see also McCarthv v. White, 21 Cal. 495; 82 Am. Dec. 754; Heinlin v. Castro, 22 Cal. 100; Coster t.. Brown. 23 Cal. 142; Cunningham v. Hawkins, 24 Cal. 403: 85 .'^.m. Dec. 73; Wormouth v. Hatch, 33 Cal. 121: Arrington v. Liscom, 34. Cal. 365; 94 Am. Dec. 722; see particularly Grattan v. Wiggins, 23 Cal. 16; Lent v. Shear. 26 Cal. 361; Le Roy v. Rogers, 30 Cal. 229: 89^ Am. Dec. 88; Espinosa v. Gregory, 40 Cal. 58,. 159 COMMENCEMENT OF CIVIL ACTIONS. §312 citing Hughes ▼. Davis. 40 Cal. 117; Siter v. Jewett, 33 Cal. 92. "Where an action upon a promissory note, secured by a mortgage of the same date, upon real property, is barred by our statute of limitations, the remedy upon the mort- gage is also barred." McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754, affirming Lord v. Morris, 18 Cal. 482. 30. Mortg?ge. A person who purchases prop- erty from a mortgagor, subspi-fuent to the execu- tion of a mortgage, may plead the statute of limi- tations in an action to foreclose the mortgage, commenced after the statute has run against the debt secured bv such mortgage. McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754. 31. Renewal of note extends lien of mortgage. A renewal of a note extends the lien of the mort- gage given to secure the note, so that the statute of limitations will not run until the expiration of the new note given. See Lent v. Morrill, 25 Cal. 492. And this renewal extends the mortgage, even against innocent purchasers. Id. 32. Joint mortgage debtors. One being absent from state. Three persons executed a .ioiiit mort- gage to secure their joint and several nfites. One of the makers left the state. The note became outlaived as to the two makers living in the state. Held: the lien of the mortgage was barred as to the two in the state, and it can only be en- forced against the interest of the one as to whom the note is not barred. Low v. Allen, 26 Cal. 141. 33. Mortgage not always barred when debt for which it is given is barred. A mortgage given to secure the payment of a debt not in writing is a contract "founded upon an instrument in writ- ing," within the meaning of the statute of limita- tions, and an action for its foreclosure may be maintained at any time within four years from its breach, notwithstanding that the statute has in the mean time barred the original debt. Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 620. 34. Right to redeem. Where the assignee of one note (see facts of case), having the first right to the benefit of the mortgage, forecloses, and the property is sold, such foreclosure and sale extinguish the mortgage. The holders of the other notes secured by the mortgage have a right to redeem, but when not made parties to the ac- tion, they must assert this right within four years, or be barred by the statute of limitations. The right to foreclose and the right to redeem are reciprocal, and the statute begins to run against the redemption at the time the right of action accrues on the mortgage. Grattan v. W^ig- gins, 23 Cal. 16; and see further, as to right to redeem, De Espinosa v. Gregory. 40 Cal. 58; Siter V. Jewett, 33 Cal. 92; Cunningham v. Hawkins, 24 Cal. 403; 85 Am. Dec. 73: Arrington v. Lis- com, 34 Cal. 365; 94 Am. Dec. 722. 35. Plesding. Pleaiing of the statute of limi- tations. See Smith v. Richmond, 19 Cal. 476: Lick V. Diaz, 30 Cal. 75. The defense of the statute of limitations is a personal privilege of the debtor, which he may assert or waive at his option, but it must be set up in some form, either by demurrer or answer, or it will be deemed to have been waived. Grattan v. Wiggins, 23 Cal. 16. It must be pleaded in the first instance, and has no day of grace thereafter. See Cooke v. Spears, 2 Cal. 409; 56 Am. Dec. 348. 36. Statute, how pleaded by demurrer. A de- fense under the statute of limitations cannot be made by a demurrer which states in general terms that the complaint does not state facts sufficient to constitute a cause of action. The statute, in order to be available as a defense, must be dis- tinctly stated in the demurrer. Brown v. Martin, 25 Cal. 82: affirmed in Farwell v. Jackson, 28 Cal. 106; Smith v. Richmond. 19 Cal. 476. S7. Eight to use water by adverse use. See American Company v. Bradford, 27 Cal. 360. 38. Averment that cause of action accrued more than two years prior, etc. In an action for the Tslue of services rendered, a plea which does not aver that the cause of action accrued more than two years before the commencement of the ac- tion, but only that the services conlricted to he rendered by the plaintiff were rendered more than two years before action brought, is insufficient as a plea of the statute of limitations. Hartson V. Hardin, 40 Cal. 264. 39. Pleading adverse possession. A plea of the statute of limitations, which states that the plain- tiff was not seised of the land within five years before the commencement of the action, is fatally defective in not averring that neither the plain- tiff's predecessor or grantor was possessed within that time, and also because no adverse possession by the defendant is alleged for any time anterior to the action. Sharp v. Daughney, 33 Cal. 505. 40. Allegation of adverse possession, etc. The statute is not well pleaded in an answer which states that "if plaintiffs ever had any right or title to their claims, or to any portion thereof, they are barred by the statute of limitations, as the defendants have been in the quiet and peace able possession of the same, adversely to the plaintiffs, for a period of over five years." The averment that the plaintiff is "barred by the stat- ute of limitations" is merely a conclusion of law. It docs not present any issuable fact. Schroeder V. Jahns, 27 Cal. 274; Caulfield v. Sanders, 17 Cal. 569. The "period of over five years," dur- ing which it is alleged that defendants were in adverse possession, is not charged as having pre- ceded the commencement of the action. Table Mountain Tunnel Co. v. Stranahan, 31 Cal. 387. 41. Adverse possession by tenant in common, allegation of. A person depending upon an ad- verse possession, of a sufficient time, of land, owned by himself and the adverse party as ten- ants in common, must plead facts from which it will affirmatively appear that his possession was of an adverse and hostile character; otherwise his possession of land will be deemed to be ac- cording to his right, and in support of the title in common. Lick v. Diaz, 30 Cal. 65. See fur- ther, as to adverse possession, Le Roy v. Rogers, 30 Cal. 229; 89 Am. Dec. 88. 42. Allegations of facts, not of law, required. A party relying on the statute of limitations should not allege matter of law, but the facts which bring it within the statute. Boyd v. Blank- man, 29 Cal. 44: 87 Am. Dec. 146. 43. Averment of five years covers any less term. An answer averring that the cattse of ac- tion had not accrued within five years is suffi- cient for five years, and for any period of limi- tation less than five rears. Boyd v. Blankman, 29 Cal. 44: 87 Am. Dec. 146. 44. Items of account. Where the complaint states a cause of action for goods sold and de- livered, and a bill of items is annexed to the same as an exhibit, with the date of each item, an answer which refers to the exhibit, and avers that the last item, only, is within two years pre- vious to the commencement of the action, and that, except as to the last item, "no right has accrued to said plaintiff by reason of the matter mentioned and set forth in said complaint at any time within two years next preceding this ac- tion," is a good answer of the statute of limita- tions to all the items, except the last. The words "preceding the commencement of this action," in such answer, are equivalent to the words "preced- ing the filing of the complaint." Adams v. Pat- terson, 35 Cal. 122. 45. Assumpsit, A count in a complaint in the old form of assumpsit, for money had and re- ceived, in which the promise is laid of a day more than two years prior to the commencement of the action, is demurrable, on the ground that it shows the demand to be barred by the statute of limitations. Keller v. Hicks, 22 Cal. 457; 83 Am. Dec. 78. 46. Pleading by demurrer. On demurrer to a complaint founded upon the statute of limitations, if the complaint fails to show whether the con- tract in suit was verbal or in writing, it will be presumed to have been in writing, for all the pur- poses of the demurrer. Miles v. Thorne, 38 Cal. 335: 99 Am. Dec. 384. 47. Pleading by demurrer. The defense of the statute of limitations may be presented by de- murrer when it appears from the complaint that the period of limitation has elapsed since the cause of action accrued to the plaintiff, and no facts are alleged taking the demand out of the § 315 TIME OF COMMENCING ACTIONS FOR RECOVERY OF REAL PROPERTY. 160 operation of the statute. Mason ▼. Cronise, 20 Cal. 211, affirming Smith v. Richmond, 19 Cal. 476, and Barringer v. Warden, 12 Cal. 311. But the bar of the statute must clearly appear on the face of complaint. Ord v. De La Guerra, 18 Cal. 68. 48. By answer. But where the demand is in truth barred, but the fact does not appear upon the face of the complaint, the defense of the stat- ute must be made by answer. Smith v. Rich- mond, 19 Cal. 476. 49. New promise. A complaint upon a note barred by the statute is sufficient, if it alleges that the defendant has within four years of the day when the suit was commenced, "in writing, acknowledged and promised to pay the note." Such allegation imports that the defendant signed the writing. Porter v. Elam, 25 Cal. 291; 85 Am. Dec. 132. The defendant's signature to the new promise was necessary, and the new promise must be in writing. Pena v. Vance, 21 Cal. 142. See also, on this point, Barringer v. Warden, 12 Cal. 811. 50. New promise. It is sufficient, where the complaint alleged an express promise to pay a debt which was barred by the statute, to prove an acknowledgment of the debt' from which a promise to pay is implied. See further facts con- cerning burden of proof, etc, Farrell v. Palmer, 36 Cal. 187. 51. New promise. Where a creditor sues after the statute has run upon the original contract, his cause of action is not the original contract, for his action thereupon is barred, but it is the new promise, the moral obligation arising from the original contract binding in foro conscientiae, notwithstanding the bar of the statute being the consideration for the new promise. For authori- ties upon new promise, see Angell on Limitations, pp. 218 et seq. And the action must be brought on the new promise within four years. See Mc- Cormick v. Brown, 36 Cal. 184; 95 Am. Dec. 170, and authorities therein cited. See further, as to new promise, Smith v. Richmond, 19 Cal. 476. 52. Pleading new promise. For payment of debt outlawed, etc. See Smith v. Richmond, 19 Cal. 476. 53. Ejectment. In ejectment, a plea of the statute of limitations of two years, under the set- tler's act is no defense. Anderson y. Fisk, 33 Cal. 625. CHAPTER II. TIME OF COMMENCING ACTIONS FOB EECOVERY OF EEAL PROPERTY. §315. When the people will not sue. §322. § 316. When action cannot be brought by grantee from the state. § 323. § 317. When actions by the people or their gran- tees are to be brought within five years. § 324. § 318. Seisin within five years, when necessary in action for real property. § 325. § 319. Such seisin, when necessary in action or defense arising out of title to or rents § 326. of real property. § 320. Entry on real estate. § 327. § 321. Possession, when presumed. Occupation deemed under legal title, unless ad- § 328. verse. Occupation under written instrument or judgment, when deemed adverse. What constitutes adverse possession un- der written instrument or judgment. Premises actually occupied under claim of title deemed to be held adversely. What constitutes adverse possession un- der claim of title not written. Relation of landlord and tenant as affect- ing adverse possession. Right of possession not affected by descent cast. Certain disabilities excluded from time to commence actions. § 315. When the people v^dll not sue. The people of this state Avill 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 people to the same, unless — 1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is commenced ; or, 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years. Title by occupancy. Civ. Code, § 1007. Legislation § 315. Enacted March 11, 1873; based on Stats. 1850, p. 343. Statute of limitations not applicalale as against the state. The state is not bound by its statute of limitations, except by ex- press words or by necessary implication (Wilhoit V. Tubbs, 83 Cal. 279; 23 Pac. 386; Russ v. Crichton, 117 Cal. 695; 49 Pac. 1043) ; nor is the statute applicable to prop- erty held in trust by a state institution or a public agency for a public use (Sixth Dis- trict Agricultural Ass'n v. Wright, 154 Cal. 119; 97 Pac. 144); neither is the Federal government bound by the state statute of limitations. Mathews V. Ferrea, 45 Cal. 51; Doran v. Central Pacific R. R. Co., 24 Cal. 245; Gardiner v. Miller, 47 Cal. 570; Jatunn V. Smith, 95 Cal. 154; 30 Pac. 200. Accrual of title -within ten years. This section is construed to mean, that the people of the state will not sue "for or in respect to real property," except where the cause of action has accrued within ten vears. People V. Center, 66 Cal. 551; 5 Pac!! 263; 6 Pac. 481. With respect to real property. The state may maintain an action with respect to real property at any time within ten years; but no cause of action can be brought to re- cover possession until the state has been deprived of possession. People v. Center, 66 Cal. 551; 5 Pac. 263; 6 Pac. 481. The state can never be disseised of its lands by the adverse occupancy of another (Wil- hoit v. Tubbs, 83 Cal. 279; 23 Pac. 3S6); and no title by adverse possession can be acquired, as against the state, to lands held 161 WHEN ACTION CANNOT BE BROUGHT BY GRANTEE FROM STATE. §§ 316-318 in trust by it for the people, unless there has been an abandonment of such public use by competent authority. People v. Kerber, 152 Cal. 731; 125 Am. St. Rep. 93; 93 Pac. 878. As against the public, no one can acquire, by adverse occupancy, the right to obstruct a street dedicated to pub- lic use, and thus prevent its use as a high- way. Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437. The title to tide-lands cannot properly be said to have "accrued" to the state, in the sense in which that term is employed in this sec- tion (Parish V. Coon, 40 Cal. 33); and it is doubtful whether this section is applicable at all to suits to recover possession of such tide-lands. People v. Kerber, 152 Cal. 731, 738; 125 Am. St. Rep. 93; 93 Pac. 878. A § 316. When action cannot be brought by grantee from the state. No action can be brought for or in respect to real property by any person claim- ing under letters patent or grants from this state, unless the same might have been commenced by the people as herein specified, in case such patent had not been issued or grant made. suit by the attorney-general, in behalf of the people, for the recovery of state lands, may be maintained without express statu- tory authority. People v. Stratton, 25 Cal. 242; People v. Center, 66 Cal. 551; 5 Pac. 263; 6 Pac. 481. This section has no ap- plication to an action by an individual holding under a state patent. Wilhoit v. Tubbs, S3 Cal. 279; 23 Pac 286. Statute must be pleaded. The bar of the statute must be specifically pleaded, to be availed of. Osment v. McElrath, 68 Cal. 466; 58 Am. Rep. 17; 9 Pac. 731; Wilhoit v. Tubbs, 83 Cal. 279; 23 Pac. 386; Dougall V. Schulenberg, 101 Cal. 154; 35 Pac. 635. CODE COMlVnSSIONERS' NOTE. Stats. 1850, p. 343. See Farish v. Coou, 40 Cal. 33; Hall v. Bowling, 18 Cal. 619. priated before the grant, or from the date of the appropriation if it was made after the grant, and not from the date of the is- suance of the patent to the land. Jatunn V. Smith, 95 Cal. 154; 30 Pac. 200; and see Fremont v. Seals, 18 Cal. 433; Gardiner v. Miller, 47 Cal. 570; Nessler v. Bigelow, 60 Cal. 98, CODE COMMISSIONERS' NOTE, p. 343. Stats. 1850, Legislation 8 316. Enacted March 11, 1873; based on Stats. 1850, p. 343. Persons claiming from state. An indi- vidnal, claiming under a patent from the state, can maintain his action to recover the property, or the mesne profits thereof, at any time within the five years prescribed by the statute. Wilhoit v. Tubbs, 83 Cal. 279; 23 Pac. 386. In an action involving the use of water, the statute runs from the date of the grant if the water was appro- § 317. When actions by the people or their grantees are to be brought within five years. 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 determination, but not after that period. Legislation § 317. 1. Enacted March 11, 1873 ; ■based on Stats. 1850, p. 343. 3. Amended by Code Amdts. 1873-74, p. 291, (1) omitting, after "competent court," the •clause, "rendered upon an allegation of a fraudu- lent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such ease"; (2) changing the word "the" from "this," in the words "people of the stat%" ; and (3) omitting the word "same" before "property," in the words "grantee of the property." Acquisition of title by prescription against public. See note 26 L. R. A. 451. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 343. § 318. Seisin within five years, when necessary in action for real prop- erty. No action for the recoverj^ of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question, within five years before the commencement of the action. Legislation § 318. Enacted March 11, 1878; based on Stats. 1863, p. 325. Application of section. This section ap- plies to an action to set aside a convey- ance as obtained by fraud and undue influ- ence, and to recover an interest in the Adverse possession. Post, §§321 et seq. Trespass upon real property, action for, must be brought within three years. Post, § 338. Possession, presumptive evidence of ownership. See post, § 1963, subd. 11. Action includes special proceeding of civil aiature. Post, § 363. 1 Fair. — 11 § 318 TIME OF COMMENCING ACTIONS FOE RECOVERY OF REAL PROPERTY. 162 property (Murphy v. Crowley, 140 Cal. 141; 73 Pac. 820, reversing Murphy v. Crowley, 7 Cal. Unrep. 49; 70 Pac. 1024; Page v. Garver, 146 Cal. 577; 80 Pac. 860); and is to be construed with § 338, post; and must govern, where, though the principal ground for relief is on account of fraud, still, in the action, the party seeks the recovery of real property on the ground of such fraud. Unkel V. Robinson, 163 Cal. 648; 126 Pac. 485. An action to establish involuntary and resulting trusts in land, to enforce a conveyance of the legal title, and to re- cover the possession thereof, is subject wholly to this section, and not to § 343, post. Bradley v. Bradley, 20 Cal. App. 1; 127 Pac. 1044. Recovery of real property, or possession. An action to acquire title to a right of way is within this section (Schmidt v. Klotz, 130 Cal. 223; 62 Pac. 470); as is also an action to compel a conveyance of land and correct a mistake in the deeds (Goodnow V. Parker, 112 Cal. 437; 44 Pac. 738; Union lee Co. V. Doyle, 6 Cal. App. 284; 92 Pac. 112) ; and an action to recover real prop- erty' and cancel a deed (Daniels v. Dean, 2 Cal. App. 421; 84 Pac. 332), and an action to cancel a patent by the United States (Curtner v. United States, 149 U. S. 662; 37 L. Ed. 890; 13 Sup. Ct. Eep. 985); and an action to determine title to water, even where the defense pleaded is fraud and mistake, whereby the legal title was ob-1 tained, is also within this section (South Tule etc. Ditch Co. v. King, 144 Cal. 455; 77 Pac. 1032); as is also an action to be let into possession as tenant in common to land, possession of which was obtained from an ancestor bv undue influence (Mur- phy v. Crowley, 140 Cal. 141; 73 Pac. 820); but not an action which does not seek to recover real property, but merely to reform a deed upon the ground of mutual mistake. Hart V. Walton, 9 Cal. App. 502; 99 Pac, 719. In an action to quiet title under the so-called McEnerney Act, proof of the actual possession by the plaintiff of the land in question at the time the action was commenced and when the affidavit accom- panying it was made, is necessary to the rendition of a judgment for the plaintiff. Vanderbilt v. All Persons, 163 Cal. 507; 126 Pac. 158. Possession required of one who invokes McEnerney Act. See note post, § 323. Possession by one tenant in common. As between tenants in common, the possession of one is the possession of all; in order to set the statute running in favor of one ten- ant against his co-tenant, it is necessary that there shall be an adverse possession (Watson V. Sutro, 86 Cal. 500; 24 Pac. 172; 25 Pac. 64; and see Love v. Watkins, 40 Cal. 547; 6 Am. Rep. 624; Unger v. Mooney, 63 Cal. 586; 49 Am. Rep. 100); and where such possession is adverse for the required time, it will operate in favor of a tenant in common against his co-tenant (Tully v. Tully, 71 Cal. 338; 12 Pac. 246); as where they hold in hostility to each other and in severalty. Casserly v. Alameda County, 153 Cal. 170; 94 Pac. 765; Gregory v. Gregory, 102 Cal. 50; 36 Pac. 364. The exercise of unequivocal, overt, and notorious acts of ownership, by a tenant in common in pos- session, imparts notice that disseisin is in- tended (Feliz V. Feliz, 105 Cal. 1; 38 Pac. 521); and an open and notorious posses- sion, and claim of ownership, continued for more than five years, constitutes an ouster of co-tenants, and the bar of the statute intervenes (Unger v. Mooney, 63 Cal. 586; 49 Am. Eep. 100; Bath v. Valdez, 70 Cal. 350; 11 Pac. 724; Winterburn v. Chambers, 91 Cal. 170; 27 Pac. 658); but where the' possession of one tenant in common has not been disturbed by his co-tenants, and there have been no acts of exclusion equivalent to an ouster, the statute does not run as against his right or title (McCauley v. Harvey, 49 Cal. 497); in other words, there must be a repudiation of the trust, and a notice thereof brought home to the eo- tenant, before any adverse possession can arise. Watson v. Sutro, 86 Cal. 500; 24 Pac. 172; 25 Pac. 64. The question of whether a person entered into possession claiming ownership of the whole, or whether he ac- knowledged a co-tenancy, is one of fact. iAlvarado v. Nordholt, 95 Cal. 116; 30 Pac. 211. A valid decree in partition severs the unity of possession, and is conclusive as to all rights in other parts of the land, irrespective of the adverse possession by those to whom they were allotted. Rich- ardson v. Loupe, 80 Cal. 490; 22 Pac. 227. Adverse possession. Adverse possession is merely possession hostile as against a particular claim, to which it is opposed in proof (McManus v. O'Sullivan, 48 Cal. 7); but it is of the very essence of adverse possession, that the holder claim the right to his possession, not under, but in opposi- tion to, the title to which his possession is alleged to be adverse. Farish v. Coon, 40 Cal. 33. The statute does not begin to run against a remainderman until the termination of the life estate, when he be- comes entitled to the possession. Pryor v» Winter, 147 Cal. 554; 109 Am. St. Rep. 162; 82 Pac. 202. And, although complete and exclusive, it must also continue for the full period. Baum v. Reay, 96 Cal. 462; 29 Pac. 117; 31 Pac. 561; Watts v. Gallagher, 97 Cal. 47; 31 Pac. 626. Adverse possession does not ripen into title, unless it is continued uninterruptedly for five years (Hayes v. Martin, 45 Cal. 559); and, to effect a bar, the possession must be con- tinuous and exclusive for the full period. Hagar v. Spect, 48 Cal. 406. It must also be actual and complete, as well as continu- ous. Kimball v. Stormer, 65 Cal. 116; 3 Pac. 408; Kockemann v. Bickel, 92 Cal. 665; 28 Pac. 686; Miller v. Bensinger, 3 163 SEISIN WITHIN FIVE YEARS, WHEN NECESSARY IN ACTION. §318 Cal. Unrep. 704; 31 Pae. -ITS. The pos- session of a part, only, will not prevent the bar of the statute as to that not in possession. Weed v. Snook, 144 Cal. 439; 77 Pae. 1023. Title by adverse possession may be acquired, though commenced under a mistake. Steckter v. Ewing, 6 Cal. App. 761; 93 Pae. 286. Adverse possession must continue for five years. The occupation of land adversely for five years continuously, without inter- ruption, and in compliance with all the re- quirements of the law, vests absolute title in the occupant, as much as any written conveyance, which is known as title by prescription (Simson v. Eckstein, 22 Cal. 580; Grattan v. Wiggins, 23 Cal. 16; Le Roy V. Eogers, 30 Cal. 229; 89 Am. Dec. 88; Arrington v. Liscom, 34 Cal. 365; 94 Am. Dec. 722; Cannon v. Stockmon, 36 Cal. 535; 95 Am. Dec. 205; San Francisco v. Fulde, 37 Cal. 349; 99 Am. Dec. 278; Mc- Manus v. O'Sullivan, 48 Cal. 7; Morris v. De Celis, 51 Cal. 55; Langford v. Poppe, 56 Cal. 73; Pacific Mut. Life Ins. Co. v. Stroup, 63 Cal. 150; Johnson v. Brown, 63 Cal. 391; Thomas v. England, 71 Cal. 456; 12 Pae. 491); and is sutficient not only to bar a claimant under a legal title, but also to create a title. Owsley v. Matson, 156 Cal. 401, 104 Pae. 983. When possession is not adverse. The pos- session of an administrator is the posses- sion of the heir. Spotts v. Hanley, 85 Cal. 155; 24 Pae. 738; Brenham v. Storey, 39 Cal. 179. In case of a trustee, there must be an open and unequivocal repudiation of the trust by the trustee, and actual knowl- edge thereof by the cestui que trust, to set the statute running against an action to enforce the trust (Luco v. De Toro, 91 Cal. 405; 27 Pae. 1082; Miles v. Thome, 38 Cal. 335; 99 Am. Dec. 384; Love v. Watkins, 40 Cal. 547; 6 Am. Rep. 624; Hearst v. Pujol, 44 Cal. 230; Hoffman v. Vallejo, 45 Cal. 564; Janes v. Throckmorton, 57 Cal. 368), as the possession of a trustee is the possession of the cestui que trust. Love v. Watkins, 40 Cal. 547; 6 Pae. 624. The pos- session of one, gained by a partial distribu- tion, while the estate remains unclosed, is the possession of all the distributees. Es- tate of Grider, 81 Cal. 571; 22 Pae. 908. A party holding in one capacity cannot claim adversely in another. Roman Catholic Archbishop v. Shipman, 79 Cal. 288; 21 Pae. 830. The conveyance of title by the party in possession makes him the tenant of the grantee (Brooks v. Hyde, 37 Cal. 366) ; but where he remains in adverse pos- session for a period of five years, he ac- quires a title as against his grantee. Dor- land V. Magilton, 47 Cal. 485. An adverse possession, taken after a deed, and held the time required by statute, is good as against the grantee. Franklin v. Dorland, 28 Cal. 175; 87 Am. Dec. 111. As between a landlord and a tenant in possession, the statute does not run against the landlord in favor of the tenant (Doolan v. Mc- Cauley, 66 Cal. 476; 6 Pae. 13U; Oueto v. Restano, 89 Cal. 63; 26 Pae. 788); and the same rule applies to a subtenant. Stand- ley V. Stephens, 66 Cal. 541; 6 Pae. 420; Millett V. Lagomarsino, 107 Cal. 102; 40 Pae. 25. This is under the general rule, that a tenant cannot dispute his landlord's title. Tewksbury v. Magraff, 33 Cal. 237; Willson V, Cleaveland, 30 Cal. 192. As be- tween a mortgagee in possession and the mortgagor, unless there has been some breach of condition of the mortgage, the possession of the mortgagee is not adverse to the mortgagor. Husheon v. Husheou, 71 Cal. 407; 12 Pae. 410; Warder v. Enslen, 73 Cal. 291; 14 Pae. 874. The same rule applies as between a pledgee and the pledgor (Cross v. Eureka Lake etc. Canal Co., 73 Cal. 302; 2 Am. St. Rep. 808; 14 Pae. 885); and also as between a vendee and the vendor, under a contract of pur- chase, unless there is some hostility, mani- fested by some unequivocal acts brought to the knowledge of the vendor (Kerns v. Dean, 77 Cal. 555; 19 Pae. 817); but a grantee's entry under purchase is adverse to the grantor, and he may set up an ad- verse title from an independent source. Robinson v. Thornton, 102 Cal. 675; 34 Pae. 120. When the grantor remains in posses- sion after a sale, or subsequently takes repossession, and holds adversely to the grantee, he may acquire adverse title. Franklin v. Dorland, 28 Cal. 175; 87 Am. Dec. Ill; Dorland v. Magilton, 47 Cal. 485; Lord V. Sawyer, 57 Cal. 65; Garabaldi v. Shattuck, 70 Cal. 511; 11 Pae. 778. The statute does not commence to run against a remainderman until the death of the ten- ant, as he is not entitled to possession dur- ing the life of the tenant (Pryor v. Winter, 147 Cal. 554; 109 Am. St. Rep. 162; 82 Pae. 202); nor against an infant until he at- tains his majority (Burton v. Robinson, 51 Cal. 186); nor does it run as against the certificate of purchase of swamp or over- flowed lands, but commences to run on the date of the issuance of the patent thereon. Manlv V. Hewlett, 55 Cal. 94; Easton v. O'Reillv, 63 Cal. 305; Wilhoit v. Tubbs, 83 Cal. 279; 23 Pae. 386; Riverside Land etc. Co. v. Jansen, 66 Cal. 300; 5 Pae. 486; O'Connor v. Fogle, 63 Cal. 9; Reed v. Ybarra, 50 Cal. 465. The statute com- mences to run against a purchaser at a sheriff's sale on the date of the delivery of the sheriff's deed. Leonard v. Flvnn, 89 Cal. 535; 23 Am. St. Rep. 500; 26 Pae. 1097. An action to compel the conveyance of property is not barred, so long as the pur- chaser is in possession of the property agreed to be conveved (Scadden Flat Gold Mining Co. v. Scadden, 121 Cal. 33; 53 Pae. 440) ; and where the vendee has performed his part of the contract, the statute does not commence to run against his right to § 318 TIME OF COMMENCING ACTIONS FOB RECOVERY OF REAL PROPERTY. 164 specific performance, so long as he remains in possession (Fleishman v. Woods, 135 Cal. 256; 67 Pac. 276); and where the dis- tributee of an estate has held the same adversely for more than five years, and has paid all taxes, an action to recover the estate is barred. Gavin v. Phillips, 12 Cal. App. 34; 106 Pac. 424. Possession by predecessor. Under this section, the grantee may tack to his own possession the possession of his grantor, for the purpose of working out a bar against the holder of the legal title (Franklin v. Borland, 28 Cal. 175; 87 Am. Dec. Ill); but where the predecessor is barred by the statute, one claiming under him is barred also. Le Eoy v. Rogers, 30 Cal. 229; 89 Am. Dec. 88. An heir has only such right as the ancestor might have. Page v. Page, 143 Cal. 602; 77 Pac. 452. Legal title not aided by adverse posses- sion. Possession held under legal title can- not gain anything from adverse possession, Howell v. Slausen, 83 Cal. 539; 23 Pac. 692. Possession under permission. No pre- scriptive title can be acquired, where occu- pancy of the land is under permission of the owner of the title. Feliz v. Los An- geles, 58 .Cal. 73; Ball v. Kehl, 95 Cal. 606; 30 Pac. 780; Allen v. McKay, 139 Cal. 94; 73 Pac. 713. No adverse possession against public. There can be no adverse user, against the public (Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437; Visalia V. Jacob, 65 Cal. 434; 52 Am. Rep. 303; 4 Pac. 433; San Leandro v. Le Breton, 72 Cal. 170; 13 Pac. 405; Hargro v. Hodgdon, 89 Cal. 623; 26 Pac. 1106; Orena v. Santa Barbara, 91 Cal. 621; 28 Pac. 268), of land dedicated to a public use (San Francisco V. Bradbury, 92 Cal. 414; 28 Pac. 803; Yolo County V. Barney, 79 Cal. 375; 12 Am. St. Rep. 152; 21 Pac. 833; Board of Education V. Martin, 92 Cal. 209; 28 Pac. 799); nor can title to a public street be acquired by adverse user, except where the land has ceased to be a public street, and is held hy the city merely as a proprietary in- terest. Red Bluff v. Walbridge, 15 Cal. App. 770; 116 Pac. 77. This section ap- plies to adverse possession of squares by a town, city, and county. Casserly v. Ala- meda County, 153 Cal. 170; 94 Pac. 765. Payment of taxes. Where it is neces- sary to pay taxes to secure a good title by adverse Y)Ossession, such title is defeated by a failure to pay the taxes for a single year. Allen v. McKay, 139 Cal. 94; 72 Pac. 713. There is no adverse possession, under the occupation of land, where the occupier fails to pay the taxes. O'Connor v. Fogle, 63 Cal. 9; Berniaud v. Beecher, 71 Cal. 38; 11 Pac. 802; Gavin v. Phillips, 12 Cal. App. 34; 106 Pac. 424. The payment of taxes "by a third person, merely as the result of an erroneous assessment, does not affect the title to land occupied by the owner, nor debar him of his right to have it quieted. Vanderbilt v. All Persons, 163 Cal. 507; 126 Pac. 158. The proof of the payment of taxes is admissible to show claim of title, and that it had not been abandoned. Baum v. Reay, 96 Cal. 462; 29 Pac. 117; 31 Pac. 561; Southern Pacific R. R. Co. v. Whittaker, 109 Cal. 268; 41 Pac. 1083. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 325. 1. Real property. Oakland v. Carpentier, 13 Cal. 540; Morton v. Folger, 15 Cal. 275; Fre- mont V. Seals, 18 Cal. 433; Clarke v. Huber, 25 Cal. 596; Billings v. Harvey, 6 Cal. 383; Billings V. Hall, 7 Cal. 3. For a digest of the above- cited decisions on the several points involved, see note to § 312, ante, where these cases are discussed. 2. Division lines. Tences. As to division lines between sdjacent lands, acquiescence for the time prescribed by the statute of limitations concern- ing real property may fix the division line as to the owners, etc. Sneed v. Osborn, 25 Cal. 626, and authorities cited. 3. Eight to use running water. Adverse en- joyment. To acquire a right to the use of a run- ning stream by adverse enjoyment or prescription, it is necessary that such adverse enjoyment or prescription should have continued for a period corresponding to the time fixed by the statute of limitations as a bar to an entry on land, viz., five years. Crandall v. Woods, 8 Cal. 144; Davis v. Gale, 32 Cal. 26; 91 Am. Dec. 554. 4. Adverse possessor allowing others below to use water. If one taking adverse possession of water, as against a prior appropriator, suffers a portion of the same to flow down to accom- modate miners working below, this does not preju- dice his adverse possession so as to prevent the running of the statute of limitations. Davis v. Gale, 32 Cal. 26 ; 91 Am. Dec. 554. 5. Water rights acquired by adverse posses- sion. The right to the use of a watercourse in the public mineral lands, and the right to divert and use the water taken therefrom, is acquired by appropriation and use, the person first ap- propriating it being deemed to have the title, as against all the world, except the United States and persons claiming under them, to the extent that he thus appropriated it before the rights of others attached. The rights thus acquired may be held, granted, abandoned, or lost by the same means as a right of the same character issuing out of lands to which a private title exists. The right of the first appropriator may be lost, in whole or in some limited portions, by the ad- verse possession of another. And when such person has had the continued, uninterrupted, and adverse enjoyment of the watercourse, or of some certain portion of it, during the period limited hy the statute of limitations for entry upon lands, the law will presume a grant of the right so held and enjoyed by him. Bealey v. Shaw. 6 East, 208; Balston v. Buested, 1 Camp. 463; Ricard v. Williams, 7 Wheat. 59, 5 L. Ed. 398; Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45; Colvin v. Burnet, 17 Wend. 564; Hammond V. Zehner, 23 Barb. 473 ; Yankee Jim's Union Water Co. v. Crary, 25 Cal. 509; 85 Am. Dec. 145. 6. Eight to water by adverse use, by prescrip- tion. Burden of proof, etc. The general and es- tablished doctrine is, that an exclusive and unin- terrupted enjoyment of water, in any particular way, for a period corresponding to the time lim- ited by statute within which an action must be commenced for the recovery of the property or of the assumed right held and enjoyed adversely, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person which might have been but was not asserted. 3 Kent's Com., pp. 441—446; Bealey ▼. Shaw, 6 East, 214; Shaw v. Crawford, 10 Johns. 236; Johns v. Stevens, 3 Vt. 316; Yankee Jim's' Union Water Co. v. Crary, 25 Cal. 504; 85 Am. 165 ENTRY ON REAL ESTATE, §§319,320 Dec. 145. The right \7hich the defendants clancy, adversely, under claim of title for the period prescribed by this section gives absolute authority, and bars the ri^ht of recovery (Baker v. Clark, 128 Cal. 181 60 Pac. 677; Arrington v. Liscom, 34 Cal 365; 94 Am. Dec. 722; Cannon v. Stock mon, 36 Cal. 535; 95 Am. Dec. 205; Mc Cormack v. Silsby, 82 Cal. 72; 22 Pac. 874 McGovern v. Mowry, 91 Cal. 38'd; 27 Pac 746), of such portion as is actually occu pied (Mattes v. Hall, 21 Cal. App. 552 132 Pac. 295), and the title vests in the party who first becomes the adverse pos- sessor, or his grantees and successors in interest. San Francisco v. Fulde, 37 Cal. 349; 99 Am. Dec. 278. CODE COMMISSIONERS' NOTE. Siats. 1850, p. 344. See notes to §§ 312, 322, 323, ante. claim of title, without actual and exclusive possession for the period prescribed by statute, creates title bv prescription. How- ell v. Slauson, 83 Cal. 539; 23 Pac. 692; People v. Center, 66 Cal. 551; 5 Pac. 263; 6 Pac. 481; Berniaud v. Beecher, 71 Cal. 38; 11 Pac. 802. While residence is not in- dispensable to possession, yet the mere sow- ing of an abandoned road with grain and grass, and the grazing of cattle thereon, does not give adverse possession of the roadway. Watkins v. Lynch, 71 Cal. 21; 11 Pac. 808. The adverse possession under this and the succeeding section is different from that required of one who claims under a written instrument. Cassin v. Nicholson, 154 Cal. 497; 98 Pac. 190. It is not necessary that the prescriptive right should have its origin in a grant from the owners of the land, or by agreement with them. Bashore v. Mooney, 4 Cal. App. 276; 87 Pac. 553. Under the McEnerney Act, to prove actual and peaceable possession it § 325. What constitutes adverse possession under claim of title not writ- ten. For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure. 2. Where it has been usually cultivated or improved. Provided, however, that in no case shall adverse possession be considered established under the provisions of any section or sections of this code, un- less 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 predeces- sors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land. are no equities in favor of a person seek- ing by adverse possession to acquire title to the property of another. Glowner v. De Alvarez, 10 Cal. App. 194; 101 Pac. 432. The right to take water from a stream, as against riparian owners, may be acquired by prescription. Arroyo Ditch etc. Co. v. Baldwin, 155 Cal. 280; 100 Pac. 874. The actual possession of property required to be had to give the court jurisdiction under the McEnerney Act, must be such as is necessary to sustain title by adverse pos- session, if maintained and continued for the period required. Lofstail v. Murasky, 152 Cal. 64; 91 Pac. 1008. See also Larsen V. All Persons, 165 Cal. 407; 132 Pac. 751. If a claim is made to land by virtue of an adverse possession under a claim of title not written, no other land than that actu- ally occupied is deemed to have been held adversely. Los Angeles Interurban Ry. Co. V. Montijo, 153 Cal. 15; 94 Pac. 97. To constitute actual possession of land, it is not necessary that actual physical occu- pancy by the owner or by a tenant be shown in all cases. Vanderbilt v. All Per- sons, 163 Cal. 507; 126 Pac. 158. The Adverse possession. See ante, § 321. Legislation § 325. 1. Enacted March 11, 1873; based on Stats. 1850, p. 345. 2. Amended by Code Amdts. 1877-78, p. 99, adding the proviso after subd. 2. 3. Amendment by Stats. 1901, p. 124; un- constitutional. See note ante, § 5. Adverse possession under claim of title not written. The adverse possession re- quired under this and the preceding sec- tion is different from that required of one who claims under a written instrument. Cassin v. Nicholson, 154 Cal. 497; 98 Pac. 190. This section applies only in cases Tvhere there is a contest between the holder of the legal title and a party claiming to have been in possession for five years ad- versely to such legal title; it does not apply where the claimant is merely pro- tecting his possession against one who entered thereon without right of title. •Shanahan v. Tomlinson, 103 Cal. 89; 36 Pac. 1009. Under this section, the land must have been protected by a substantial inclosure, or usually cultivated or im- proved. Los Angeles Interurban Ry. Co. v. Jdontijo, 153 Cal. 15; 94 Pac. 97. There § 325 TIME OF COMMENCING ACTIONS FOR RECOVERY OF REAL PROPERTY. 176 tacking of possessions is not permitted in proving title by adverse possession. Messer V. Hibernia Sav. & L. Soc, 149 Cal. 122; 84 Pac. 835. The possession for the requi- site time must have been peaceable and un- disputed; and such is not its nature where the title and the right of possession are then being actually litigated; the period of such litigation cannot be included in adverse possession. Estate of Richards, 154 Cal. 478; 98 Pac. 528. The adverse possession of community property by a divorced wife does not begin to become prescriptive, as to the divorced husband or his heirs, in the absence of a notice, either actual or constructive, imparting knowl- edge of the hostilitv of her possession. Tabler v. Peverill, 4 Cal. App. 671; 88 Pac. 994. A title acquired by prescription is good until extinguished, conveyed, or lost. Strong v. Baldwin, 154 Cal. 150; 129 Am. St. Eep. 149; 97 Pac. 178. Protection by substantial inclosures. Protection by a substantial inclosure, either by itself or with other lands, for the period of five years, is necessary to give a title by adverse possession (Sanchez V. Grace M. E. Church, 114 Cal. 295; 46 Pac. 2) ; for, where there is neither title nor color of title, there is no presumption of possession (Mattes v. Hall, 21 Cal. App. 552; 132 Pac. 295); but where land thus inclosed is rented by the claimant, to a tenant who subsequently attorns, without the knowledge of the claimant, to a party to whom patent has issued, and the pat- entee has no knowledge of the pretensions or possession of the latter, although mak- ing due inquiry, the subsequent possession by such tenant is not adverse to the pat- entee. Thompson v. Felton, 54 Cal. 547. There can be no adverse possession, where land has not been protected by a substan- tial inclosure, and not cultivated exclu- sively by the claimant, and taxes not paid by him, although he erected improvements thereon. O'Connor v. Fogle, 63 Cal. 9. That property is protected by a substantial inclosure, and that one claims to be the owner, is sufficient to support a conclusion of actual possession. Davis v. Crump, 162 Cal. 513; 123 Pac. 294. Usually cultivated or improved. The lands claimed must have been usually cul- tivated or improved for the period of five years, in order to give title by adverse possession. Sanchez v. Grace M. E. Church, 114 Cal. 295; 46 Pac. 2; O'Connor v. Fogle, 63 Cal. 9. The lands may be said to be usually improved, where they are improved as similar property is improved. Allen v. McKav, 120 Cal. 332; 52 Pac. 828; Gray v. Walker, 157 Cal. 381; 108 Pac. 278. If land has been improved as contemplated by this section, it is not necessary that it be either cultivated or inclosed. Gray v. Walker, 157 Cal. 381; 108 Pac. 278. Payment of taxes. The payment, by the claimant, of the taxes assessed, if any, against the land, must be shown, since the passage of the amendment of 1878. O'Con- nor V. Fogle, 63 Cal. 9; Central Pacific R. R. Co. V. Shackelford, 63 Cal. 261; Unger V. Mooney, 63 Cal. 586; 49 Am. Rep. 100; Standard Quicksilver Co. v. Habishaw, 132" Cal. 115; 64 Pac. 113; Allen v. McKay, 139 Cal. 94; 72 Pac. 713. The provision for the payment of taxes is not retroactive, and did not affect the holdings prior to that amendment (Sharp v. Blankenship, 5& Cal. 2SS; Johnson v. Brown, 63 Cal. 391; Central Pacific R. R. Co. v. Shackelford,. 63 Cal. 261; Heilbron v. Heinlen, 72 Cal. 376; 14 Pac. 24; Webber v. Clarke, 74 Cal. 11; 15 Pac. 431; Cook v. Cockins, 117 Cal. 140; 48 Pac. 1025; Lucas v. Provines,. 130 Cal. 270; 62 Pac. 509; Strong v. Bald- win, 154 Cal. 150; 129 Am. St. Rep. 149; 97 Pac. 178), which introduced a new element in the holding of land, in order to create ad- verse possession (Cook v. Cockins, 117 Cal. 140; 48 Pac. 1025) ; but this element did not affect a title which had ripened under a former law (Sharp v. Blankenship, 59 Cal. 288; Webber v. Clarke, 74 Cal. 11; 15 Pac. 431; Woodward v. Paris, 109 Cal. 12; 41 Pac. 781; Lucas v. Provines, 130 Cal. 270; 62 Pac. 509), as the legislature could not take away such title. Arrington v. Liscom, 34 Cal. 365; 94 Am. Dec. 722; Cannon v. Stockmon, 36 Cal. 535; 95 Am. Dec. 205; Langford v. Poppe, 56 Cal. 73; Cook v. Cockins, 117 Cal. 140; 48 Pac. 1025. Pay- ment of taxes for five years continuously is essential to title by adverse possession;, title by prescription cannot be established,, if the owner pays the taxes for the fifth year. Glowner v. De Alvarez, 10 Cal. App^ 194; 101 Pac. 432; People's Water Co. v. Lewis, 19 Cal. App. 622; 127 Pac. 506; Stanton v. Freeman, 19 Cal. App. 464; 126 Pac. 377. Title by prescription, turning upon the payment of taxes, is not made out, where there has been an interruption in the payment of taxes for the prescribed time. Commercial Nat. Bank v. Schlitz, 6' Cal. App. 174; 91 Pac. 750. When there is no tax on the land, by reason of the fact that it is mortgaged for more than its value, and no tax was paid by any one, there is no interruption of the adverse possession. Frederick v. Dickey, 91 Cal. 358; 27 Pac. 742. This section requires only the payment of taxes which have been levied and assessed, and, nothing to the contrary appearing, it will be presumed that the value of an easement on or over land was included in the taxes assessed against the land. Smith v. Smith, 21 Cal. App. 378; 131 Pac. 890. It is not enough for the claimant to prove that he paid all the taxes on land owned by him, for the- defense of the statute of limitations, by adverse possession, admits that he does not own the land (Ross v. Evans, 65 Cal. 439; 4 Pac. 443) ; nor is it sufficient that the party thought or supposed that he was paying taxes upon the claimed land. B.ey- 177 ADVERSE POSSESSION UNDER CLAIM OF TITLE NOT WRITTEN. §325 nolds V. Willard, 80 Cal. 605; 22 Pac. 262; Standard Quieksilver Co. v. Ilabishaw, 132 Cal. 115; 64 Pac. 113. Reliance upon an- other, who agreed to pay the taxes, but failed to do so, will not relieve the claim- ant of his obligation. Tuffree v. Polhenius, 108 Cal. 670; 41 Pac. 806. It may be, if such taxes were paid by someone else, that the adverse claimant would only be called on to prove that fact. Ross v. Evans, 65 Cal. 439; 4 Pac. 443. Payment by the mortgagee of the claimant in possession, is payment by the claimant. Brown v. Clark, 89 Cal. 196; 26 Pac. 801. It is not in- tended, however, that the taxes for any one 3^ear should be paid more than once; where the land claimed is assessed both to the claimant and to the owner, payment by the claimant protects his title. Cava- naugh V. Jackson, 99 Cal. 672; 34 Pac. 509. If they are paid by the legal owner, the subsequent repayment by the claimant oc- cupying the land cannot serve to ground or maintain adverse possession. Carpenter V. Lewis, 119 Cal. 18; 50 Pac. 925; and see Cavanaugh v. Jackson, 99 Cal. 672; 34 Pac. 509. Where the adverse claimant pays all the taxes, it is immaterial that the pos- sessor of the legal title also paid them, Owsley V. Matson, 156 Cal. 401; 104 Pac. 983. The payment of taxes by the owner, who has procured the property to be assessed to himself also, does not stop the running of the statute in favor of the claimant. Cavanaugh v. Jackson, 99 Cal, 672; 34 Pac. 509, The failure to pay the taxes is conclusive against the claimant (Martin v. Ward, 69 Cal, 129; 10 Pac. 276) ; but, after possession and the pay- ment of the taxes for the time required by statute, non-payment of the taxes there- after will not defeat the title so acquired. Webber v. Clarke, 74 Cal, 11; 15 Pac. 431. When the fee has been once acquired by five years' adverse possession, the failure of the adverse possessor to pay subsequent taxes assessed on the land does not divest nor in any way affect his title. Southern Pacific R. R. Co. v. Whitaker, 109 Cal. 268; 41 Pac. 1083, The payment of taxes on a designated tract is not effectual to complete a prescriptive right to land not included within that designation. Eber- hardt v. Coyne, 114 Cal. 283; 46 Pac. 84; McDonald v. Drew, 97 Cal. 266; 32 Pac. 173; Baldwin v. Temple, 101 Cal. 396; 35 Pac. 1008; Standard Quicksilver Co. v. Habishaw, 132 Cal, 115; 64 Pac. 113. Levied and assessed. The word "levy" refers to the act of the supervisors in making the levy, and the word "assessed" refers to the act of the assessor in making the assessment, Allen v. McKay, 120 Cal. 332; 52 Pac. 828. It is immaterial to whom the lands are assessed, whether to the claimant or another, but the claimant must show that he or his grantors have paid the taxes (Ross v. Evans, 65 Cal. 439; 4 Pac. 443); and he is not relieved 1 Fair. — 12 from the obligation to pay, by the fact that the land was not assessed separately, and he was obliged to pay taxes assessed against other lands. McNoble v, Justini- ano, 70 Cal, 395; 11 Pac. 742. Payment by the owner adds nothing to his title, but it excludes any presumption that any taxes were assessed or paid by the adv'crse claim- ant. Standard Quicksilver Co. v, Habishaw,, 132 Cal, 115; 64 Pac. 113. The redemption from a tax sale, by the claimant, cannot take the place of the payment of taxes levied and assessed (McDonald v, McCoy, 121 Cal. 55; 53 Pac. 421); but the fact that a portion of the property was jointly assessed to the claimant and another, to whom the claimant gave the money to pay such tax, but which was not paid, and the claimant subsequently redeemed the land from the tax sale, does not show a failure to pay. Gray v. Walker, 157 Cal. 381; 108 Pac, 278, The burden of showing pay- ment of taxes is on the claimant, where he relies upon adverse possession under the statute of limitations, and he must either prove that no taxes were levied upon the land claimed, or that he paid all the taxes levied and assessed thereon. Ball v, Nich- ols, 73 Cal, 193; 14 Pac. 831; Revuolds v. Willard, 80 Cal. 605; 22 Pac. 262; Oneto V. Restano, 78 Cal, 374, 375; 20 Pac, 743; McGrath v, Wallace, 85 Cal, 622; 24 Pac. 793; Baldwin v. Temple, 101 Cal. 396; 35 Pac. 1008; Goodwin v. Scheerer, 106 Cal, 690; 40 Pac. 18; Eberhardt v. Covne, 114 Cal. 283; 46 Pac. 84; Allen v, McKay, 120 Cal, 332; 52 Pac, 828; Standard Quicksilver Co. v. Habishaw, 132 Cal, 115, 123; 64 Pac. 113; Glowner v, De Alvarez, 10 Cal, App. 194; 101 Pac. 432; Allen v. Allen, 159 Cal. 197; 113 Pac. 160, If it does not appear that any taxes were assessed against the property, a failure to find that claimant paid all the taxes is immaterial (Heilbron V, Last Chance Water Ditch Co., 75 Cal. 117; 17 Pac. 65; Oneto v. Restano, 78 Cal. 374; 20 Pac. 743; Spargur v. Heard, 90 Cal. 221; 27 Pac. 198), as the party is not excluded from the benefit of the statute of limitations, unless the property which he claims to hold adversely was actually assessed; it is the duty of the occupant to pay all the taxes levied and assessed. Brown v, Clark, 89 Cal. 196; 26 Pac, 801; Allen V. McKay, 120 Cal, 332; 52 Pac. 828; Standard Quicksilver Co. v. Habishaw, 132 Cal. 115; 64 Pac. 113. There may be ad- verse possession of public property that has never been assessed for the payment of taxes, Casserly v, Alameda County, 153 Cal, 170; 94 Pac. 765, "Upon such land," It is doubtful if the word "land," as used in this section, was intended to have any other than its real meaning; in some legal connections, it is, no doubt, used co-extensively with "real property," but, primarily, it means the soil or the earth's crust; it is not at all clear, therefore, that the section was intended to I 326 TIME OF COMMENCING ACTIONS FOB RECOVERY OP REAL PROPERTY. 178 Occupied and claimed. See notes ante, §§321,322,323. Support of findings by the evidence. See note post, § 633. Inclosure of land as essential to adverse pos- session. See note Ann. Gas. 1913A, 750. CODE COMMISSIONERS' NOTE. Slats. 1850, p. 344. Subd. 1. See note to § 323, ante. If is only necessary to show that the land was held in ad- verse possession by a substantial inclosure, and the occupation, cultivation, or use of the land need not be proved. Polack v. McGrath, 32 Cal. 15; see also notes to §§ 312, 322, ante. apply to mere easements or appurtenant rights; a private ditch and water right, used for domestic purposes, to water live- stock, and to irrigate a definite tract of land, appurtenant to and passing with a conveyance of the land, is not required to be separately listed and taxed, but should be considered as included in the assess- ment of the land (Coonradt v. Hill, 79 Cal. 587; 21 Pac. 1099; Frederick v. Dickey, 91 Cal. 358; 27 Pac. 742), and, nothing to the contrary appearing, it will be presumed that it was so included in the assessment of the land. Smith v. Smith, 21 Cal. App. 378; 131 Cal. 890. § 326. Relation of landlord and tenant as affecting adverse possession. When the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or, where 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 have claimed to hold adversely to his landlord. But such presumptions cannot be made after the periods herein limited. Tenant denying landlord's title. Post, § 1962, subd. 4. Legislation 8 326. Enacted March 11, 1872; based on Stats. 1850, p. 344. Possession of tenant deemed possession of landlord. The possession of a mere tenant could not, under any circumstances, be held to be adverse, until the expiration of five years from the last payment of the rent. Raynor v. Drew, 72 Cal. 307; 13 Pac. 866. A tenant in possession under a parol lease for more than one .year, the conditions of which are fully performed, is presumed to hold in subordination to the title of his landlord. Doolan v. Mc- Cauley, 66 Cal. 476; 6 Pac. 130. A party is presumed to know that the possession of the tenant is deemed the possession of the landlord (Mauldin v. Cox, 67 Cal. 387; 7 Pac. 804) ; but the presumption that the tenant holds in subordination of his land- lord ceases upon the expiration of the term of five years after the expiration of the lease. Millett v. Lagomarsino, 4 Cal. Unrep. 883; 38 Pac. 308. Possession under an agreement to purchase is not adverse. Dresser v. Allen, 17 Cal. App. 508, 510; 120 Pac. 65. An estoppel against the ten- ant, in favor of the landlord's title, does not endure longer than the tenant's pos- session under the lease; and after posses- sion has been restored to the landlord, the tenant is released from the estoppel, and if he has paramount title, he may bring § 327. Right of possession not affected by descent cast. The right of a person to the possession of real property is not impaired or affected by a descent cast in consequence of the death of a person in possession of such property. it forward (Willson v, Cleaveland, 30 Cal. 192); and where the relation of landlord and tenant never existed, of course this section does not apply. Millett v. Lago- marsino, 107 Cal. 102; 40 Pac. 25. Estoppel of tenant to deny title of landlord. See note 13 Am. Dec. 68. Adverse possession by tenant. See note 53 L. R. A. 941. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 344. A tenant cannot set up title against his Landlord, without first surrendering possession. Tewksbury v. Magraff, 33 Cal. 237, and cases cited therein. A tenant may not be estopped, where, in taking the lease, he was imposed upon by the lessor. Gleim v. Rise, 6 Watts (Pa.), 44. So if the tenant has been ousted by title para- mount, he may plead it (Haynes v. Maltby, 3 Term Rep. 441); also, that the landlord's title has ceased, or has become extinguished (Jackson V. Rowland, 6 Wend. 666, 22 Am. Dec. 557) ; or that he has acquired his landlord's title by pur- chase from him, or at a judicial sale, or by a re- demption. And if the action is brought by a vendee of the landlord, the tenant may dispute the derivative title. Phillips v. Pierce, 5 B. & C. 433; Reay v. Cotter, 29 Cal. 168. So if tenant did not take possession under the lease, but was in possession at the time he took the lease, he may dispute the landlord's title without first sur- rendering the possession; for, not having received the possession from him, he is under no moral or legal obligation to restore it before adopting a hostile attitude, and he may have attorned by mistake to one who had no title. Cornish v. Searell, 8 B. & C. 471. To these exceptions may be added, possibly, the case where it appears affirmatively that both parties have acted under a mutual mistake as to vhe law in regard to the title of the lessor. Glen v. Gibson, 9 Barb. (N. Y.) 638 ; Tewksbury v. Magraflf, 33 Cal. 245. 179 CERTAIN DISABILITIES EXCLUDED FROM TIME TO COMMENCE ACTIONS. § 328 Legislation 8 327. Enacted March 11, 1873; based on Stats. 1850, p. 345. CODE COMMISSIONERS' NOTE. p. 344. Stats. 1850, § 328. Certain disabilities excluded from time to commence actions. If a person entitled to comnienee an action for the recovery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title to real property, or to rents or services out of the same, is, at the time such title first descends or accrues, either: 1. Under the age of majority ; 2. Insane; 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than life ; The time, not exceeding twenty years, during which such disability con- tinues is not deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense, but such action may be commenced, or entry or defense made, within the period of five years after .such disability shall cease, or after the death of the per- son entitled, who shall die under such disability; but such action shall not be commenced, or entry or defense made, after that period, is also barred, notwithstanding his minor- ity. Patchett V. Pacific Coast Ry. Co., 100 Cal. 505; 35 Pac. 73; Halleck v. Mixer, 16 Cal. 574; Cunningham v. Ashley, 45 Cal. 485; McLeran v. Benton, 75 Cal. 329; 2 Am. St. Eep. 814; 14 Pac. 879; but see contra, Crosby v. Dowd, 61 Cal. 557; Win- terburn v. Chambers, 91 Cal. 170; 27 Pac. 658. The statute is not suspended in favor of a minor claiming under an ancestor who died after his possession had been invaded and the statute of limitations set in mo tion (Crosby v. Dowd, 61 Cal. 557; Mc Leran v. Benton, 73 Cal. 329; 2 Am. St Rep. 814; 14 Pac. 879; Alvarado v. Nord holt, 95 Cal. 116; 30 Pac. 211; Castro v, Geil, 110 Cal. 292; 52 Am. St. Rep. 84; 42 Pac. 804); but where the ancestor died before his rights were invaded, the minor may commence his action five years after attaining majority. Crosby v. Dowd, 61 Cal. 557; McNeil v. First Congregational Society, 66 Cal. 105; 4 Pac. 1096. An ouster, and notice thereof, are not sus- pended by the infancy of the disseised, but the effect of his knowledge thereof is suspended until his majority, and he has five years after that date within which to bring the action to recover the land. Win- terburn v. Chambers, 91 Cal. 170; 27 Pac. 658. Prior to the statute of 1863, there was no saving clause in favor of infants. McLeran v. Benton, 73 Cal. 329; 2 Am. St. Rep. 814; 14 Pac. 879. (1) "is" "1. War. Post, § 354. Absence from state. See post, § 351. Disabilities. 1. Successive. See post, § 358. 2. Effect of, in action to recover escheated property. See post, § 1272. Legislation § 328. 1, Enacted March 11, 1873; based on Stats. 1863, p. 325. 3. Amendment by Stats. 1901, p. 124; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1903, p. 177, changing, in the first paragraph, the word from "be"; (2) changing subd. 1 from Within the age of majority; or"; (3) in subd. 2, omitting "or" after "Insane"; (4) in subd. 3, omitting (a) "for" before "life" and (b) "or" at end of subdivision; (5) omitting subd. 4, which read: "4. A married woman, and her hus- band be a necessary party with her in com- mencing such action or making such entry or defense"; and (6) in first line of last paragraph, adding the words "not exceeding twenty years." Effect of disabilities. The provisions of this section are an exception to the gen- eral rule, that actions for the recovery of real property must be brought within five years after the cause of action has arisen (Southern Pacific R. R. Co. v. Whitaker, 109 Cal. 268; 41 Pac, 1083); but where the statute of limitations has commenced to run, no subsequent disability will stop it. Crosby v. Dowd, 61 Cal. 557. This section will not protect an heir not under disabil- ity, where the disability exists as to a co- heir. Burton v. Robinson, 51 Cal. 186. Infancy. Where a cause of action ac- crues during infancy, the action must be commenced at any time within five years after attaining majority. Burton v. Rob- inson, 51 Cal. 186; Crosby v. Dowd, 61 Cal. 557; Gates v. Lindley, 104 Cal. 451; 38 Pac. 311. When an infant's property is in the hands of an executor, trustee, or guardian, and they are barred, the infant Disabilities which interrupt operation of stat- ute of limitations. See note 36 Am. Dec. 68. CODE COMMISSIONERS' NOTE. Stats. 1863, p. 325. §§ 335, 336 ACTIONS other than for recovery of real property. 180 CHAPTER III. TIME OF COMMENCING ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. § 335. Periods of limitation prescribed. § 336. Within five years. § 337. Within 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 pro- vided for. 344. 345. I 346. I 347. 348. 349. Where cause of action accrues on mutual account. Actions by the people subject to the limi- tations of this chapter. Action to redeem mortgage. Same, when some of mortgagors are not entitled to redeem. No limitations where money deposited in bank. Time for commencing actions under "local improvement act of 1901." § 335. Periods of limitation prescribed. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows: breach, and put the statute in motion. Vickrey v. Maier, 164 Cal. 384; 129 Pac. 273. In the absence of any provision to the contrary, interest coupons of bonds are independent obligations, and the statute begins to run from the date of their ma- turity, where they have been detached from the bonds and transferred to an- other. California Safe Deposit etc. Co. v. Sierra Valleys etc. Ry. Co., 158 Cal. 690; 112 Pac. 274. Neither the creditor's ignor- ance of nor his inability to discover the presence of the judgment debtor will pre- vent the running of the statute in the latter's favor. St. Paul Title etc. Co. v. Stensgaard, 162 Cal. 178; 121 Pac. 731. The burden of proof is on the defendant; he must show the date on which the stat- ute began to run. Whitcomb v. McClin- tock, 1 West Coast Rep. 876; Norton v. Zellerbach, 2 Cal. Unrep. 181; 11 Pac. Coast L. J. 3.56. Where the bar of the statute is raised, the court should expressly find whether the action is barred by the statute, and not merely facts from which it may be inferred that the bar has or has not risen. Duff v. Duff, 71 Cal. 513; 12 Pac. 570; Spaulding v. Howard, 121 Cal. 194; 53 Pac. 563. Pleading the statute of limitations. See note post, § 458. Legislation § 335. Enacted March 11, 1873. Limitations prescribed. This section, as well as the title of this chapter, clearly shows that the limitations therein fixed do not apply to actions, where the effect would be to cut off any portion of the lim- itation of five years. Goodnow v. Parker, 112 Cal. 437; 44 Pac. 738. The nature of the right sued upon, and not the form of the action or the relief demanded, deter- mines the applicability of the statute of limitations. Bell v. Bank of California, 153 Cal. 234; 94 Pac. 889. As the statute of limitations is applicable both to actions at law and to suits in equity, there can be no laches in the delay to bring an action, where brought within the period of limi- tation, unless there are some facts or cir- cumstances attending the delay that have operated to defendant's injury. Meigs v. Pinkham, 159 Cal. 104; 112 Pac. 883. This section has no relation to an equitable pro- ceeding to set aside a fraudulent deed to real estate, where the effect of it would be to restore the possession of the premises to the defrauded party; such proceeding is substantially one for the recovery of real property. Oakland v. Carpentier, 13 Cal. 540. Where a party is entitled to a per- formance upon the part of another, only a tender or offer to perform can work a § 336. Within five years. "Within five years : 1. An action upon a judgment or decree of any court of the United States or of any state within the United States. 2. An action for mesne profits of real property. Foreign 3tatute of limitations, effect of. Post, v. O'Donnell, 139 Cal. 6; 96 Am. St. Rep. 91; 72 Pac. 337. All domestic judgments are embraced within its terms (Mason v. Cronise, 20 Cal. 211; Rowe v. Blake, 99 Cal. 167; 37 Am. St. Rep. 45; 33 Pac. 864; John Heinlen Co. v. Cadwell, 3 Cal. App. 80; 84 Pac. 443; Hobbs v. Duff, 23 Cal. 596); and also judgments of a sister state (St. Paul Title etc. v. Stensgaard, 162 Cal. 178; 121 Pac. 731); but foreign judg- ments are not, being provided for by § 343, post. Dore v. Thornburgh, 90 Cal. § 3G1. Legislation § 336. 1. Enacted March 11, 1873; based on Stats. 1850, p. 343. 3. Amended by Code Amdts. 1873-74. p. 291, (1) numbering the second paragraph as subd. 1, and (2) adding subd. 2. Actions upon judgments. This section is not applicable to the procedure contem- plated by § 685, post (Doehla v. Phillips, 151 Cal. 488; 91 Pac. 330); nor does it control or affect the operation of § 708, post, nor the remedy given by it. Merguire 181 WITHIN FOUR YEARS. §337 64; 25 Am. St. Rep. 100; 27 Pac. 30. Under § 351, post, the statute does not com- mence to run against an action on a judg- ment of a sister state, against a non- resident, until the judgment debtor comes into this state, and the period of his ab- sence subsequent to his coming here is deducted from the statutory period. Chap- pel V. Thompson, 21 Cal. App. 136; 131 Pac. 82. A decree for alimony is embraced within this section (De Uprey v. De Uprey, 23 Cal. 352); and for maintenance (Simp- son V. Simpson, 21 Cal. App. 150; 131 Pac. 99); so also are foreclosure decrees and deficiency judgments. Stout v. Macy, 22 Cal. 647; Bowers v. Crary, 30 Cal. 621. The docketing of a deficiency judgment is not a new and independent judgment; it is governed by the decree. Bowers v. Crary, •30 Cal. 621. The statute is set in motion onl}^ by a final judgment (Condee v. Bar- ton, 62 Cal. 1); and the time is to be com- puted from the date on which the judg- ment is entered of record, not from the date on which the court finds the party is entitled to judgment. Parke v. Williams, 7 Cal. 247; Franklin v. Merida, 50 Cal. 289; Trenouth v. Farrirgton, 54 Cal. 273; ■Condee v. Barton, 62 Cal. 1; Crim -v. Kess- ing, 89 Cal. 478; 23 Am. St. Eep. 491; 26 Pac. 1074; Eowe v. Blake, 99 Cal. 167; 37 Am. St. Tlep. 45; 33 Pac.- 864; Edwards v. Hellings, 103 Cal. 204; 37 Pac. 218; Herr- lich V. RicDonald, 104 Cal. 551; 38 Pac. 360. A final judgment does not exist until the time for the appeal therefrom has elapsed. Feeney v. Hinckley, 134 Cal. 467; 86 Am. St. Rep. 290; 66 Pac. 580; Estate of Wood, 137 Cal. 129; 69 Pac. 900. The clerk's entry in the minutes, at the end of the trial, of the decision of the judge, does not constitute a judgment. Crim v. Kess- ing, 89 Cal. 478; 23 Am. St. Rep. 491; 26 Pac. 1074, A defendant against whom a judgment is rendered, if he wishes to set the statute running, may cause the judg- ment to be entered at any time. Edwards V. Hellings, 103 Cal. 204; 37 Pac. 218. The statute runs from the date of the mak- ing of a decree of distribution. Wheeler V. Bolton, 54 Cal. 302. Where a judgment is made payable in installments, the stat- ute begins to run on each installment from the day it becomes payable under the judgment. De Uprey v. De Uprey, 23 Cal. 352. A judgment for costs on appeal is barred within five years after the judg- ment is entered. Reay v. Heazelton, 128 § 337. Within four years. Within four years : 1. An action upon any contract, obligation or liability founded upon an instrument in writing executed within this state ; provided, that wherever the time within which any such action must be so commenced would in any ■case expire by the terms of this section after the first day of June, one thou- sand nine hundred and six and before the first day of January, one thousand nine hundred and seven, such action may be commenced at any time before Cal. 335; 60 Pac. 977. In an action against a garnishee to recover the debt due the judgment debtor, the plea of the statute can be made whenever it would be good as against the judgment debtor, but the lia- bility created by the garnishment is never barred. Nordstrom v. Corona City Water Co., 155 Cal. 206; 132 Am. St. Rep. 81; 100 Pac. 242. A failure to sue within five years does not satisfy the judgment; it only bars the right to enforce its satis- faction. San Diego v. Higgins, 115 Cal. 170; 46 Pac. 923. In an action against the administrator of a judgment creditor, the personal privilege of the statute is not waived by its not being pleaded. Reay v. Heazelton, 128 Cal. 335; 60 Pac. 977. A defendant sued on a judgment recovered in another state may plead the bar of the statute, although living in this state under an assumed name. St. Paul Title etc. Co. v. Stensgaard, 162 Cal. 178; 121 Pac. 731. Action to recover mesne profits. In an action for trespass, rents and profits are not governed by this section. Carpentier V. Mitchell, 29 Cal. 330. A patentee of land may bring an action for the recovery of rents at any time within five years (Wilhoit V. Tubbs, 83 Cal. 279; 23 Pac. 386); and an amended complaint filed within that time authorizes the recovery of all rents received within the same period. Pottkamp v. Buss, 5 Cal. Unrep. 462; 46 Pac. 169. Time limit on enforcement of Judgments. See note 133 Am. St. Rep. 61. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 343. 1. Domestic judgments. The statute runs as well against judgments rendered in this state as again.st foreign judgments. Mason v. Cronise, 20 Cal. 218. 2. Foreign judgment. A foreign judgment is not "a contract, .obligation, or liability founded upon an instrument in writing," within the mean- ing of § 337, post. Patten v. Ray, 4 Cal. 287. 3. A judgment payable in installments. The statute begins to run on a judgment payable in installments from the period fi.xed for the pay- ment of each installment, as it becomes due. De Uprey v. De Uprey, 23 Cal. 352. 4. Judgment against intestate, obtained during his life. By common law. when the limitation began to run, a subsequent disability, as death of the party bound, etc., did not stop it. But this doctrine does not apply where a judgment is ob- tained against an intestate in his lifetime, and no execution levied. In such case, the judgment creditor being prevented by law from suing after the death of the debtor, the statute of limitations ceases to run until presentation of the claim to the administrator. Quivey v. Hall. 19 Cal. 98. 5. Five-year limit on foreign judgment. Caven- der v. Guild. 4 Cal. 250. Statute begins to run, only from the time of final entry of judgment. Parke v. Williams, 7 Cal. 247. § 337 ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. 182 the first day of January, one thousand nine hundred and seven, with the same force and effect as if commenced within four years as in this section provided. 2. An action to recover a balance due upon a mutual, open and current account or upon an open book-account. Four-years limitation, where no other provis- Wallace, 75 Cal. 552; 17 Pac 680; Mc- Carthy V. Mount Tecarte Land etc. Co., Ill Cal. 328; 43 Pac. 956; Thomas v. Pacific Beach Co., 115 Cal. 136; 46 Pac. 899. An action against a county auditor for receiv- ing moneys collected for license taxes, is not within this section. San Luis Obispo County V. Farnum, 108 Cal. 567; 41 Pac. 447; Best v. Johnson, 78 Cal. 217; 12 Am. St. Rep. 41; 3 L. R. A. 168; 20 Pac. 415. An action upon a note, praying subroga- tion, is barred in four years after the ma- turity of the note. Campbell v. Campbell, 133 Cal. 33; 65 Pac. 134; Clausen v. Meister, 93 Cal. 555; 29 Pac. 232. The section ap- plies to an action to enforce a mortgage executed by a guardian (Banks v. Stock- ton, 149 Cal. 599; 87 Pac. 83), to an action to quiet title (Burns v. Hiatt, 149 CaL 617; 117 Am. St. Rep. 157; 87 Pac. 196), to an action between a beneficiary and his ion. Post, § 343. Legislation § 337. 1. Enacted March 11, IS'P (based on Stats. 1850, p. 345), and then read: "Within four years: An action upon any con- tract, obligation, or liability founded upon an in- strument in writing." ^„^„ -^ 2. Amended by Code Amdts. 1873-74, p. 291, adding the words "executed in this state at end of section. 3. Amended bv Stats. 1906, p. 5, (1) chan- ging the word "in" to "within," in the second line, and (2) adding the proviso. 4. Amended by Stats. 1907, p. o99, (1) numbering the second paragraph as subd. 1, and (2) adding subd. 2. General rule. The statute states the general rule, that actions founded upon an instrument in writing are barred after four years. Priet v. De la Montanya, 3 Cal. Unrep. 122; 22 Pac. 171; Southern Pacific Co. V. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; People v, Weiueke, 122 Cal. 535; 55 Pac. 579; Coyle v. Lamb, 123 Cal. 90 Pac. 188), to an action to recover the price of a levee built on the defendant's land (Fabian v. Lammers, 3 Cal. App. 109; 84 Pac. 432), and to an action for goods sold under a contract in writing. Brackett 264- 55 Pac. 901; Newhall v. Sherman, 124 trustee (Marston v. Kuhland, 151 Cal. 102; Cal.' 509; 57 Pac. 387; Harrigan v. Home "" ^^- - ^""•' "- -- --'-- -- -'-- Life Ins. Co., 128 Cal. 531; 58 Pac. 180; 61 Pac. 99; Vandall v. Teague, 142 Cal. 471; 76 Pac. 35. A finding that the action was barred by the statute, and that the security was over forty years past due be- v. Martens, 4 Cal. App. 249; 87 Pac. 410 fore the action was commenced, ?s sufii- eient to show that the" action was barred. Marshutz v. Seltzor, 5 Cal. App. 140; 89 Pac. 877. Actions founded upon instruments in vrriting. Actions on bills and notes are governed bv this section (Rogers v. Byers, 1 Cal. App". 284; 81 Pac. 1123; Hewel v, Hogin, 3 Cal. App. 248; 84 Pac. 1002; Du Brutz V. Bank of Visalia, 4 Cal. App. 201, 87 Pac. 467, 469; Marshutz v. Seltzor, 5 Cal. App, 140; 89 Pac. 877; Ball v. Lowe, 1 Cal. Aip. 228; 81 Pac. 1113; Palmtag v. Roadhouse, 4 Cal. Unrep. 205; 34 Pac. Ill); but the obligation of the principal to repay the surety is not "founded upon a written instrument" (Chipman v. Morrill, 20 Cal. 130; approved in McCarthy v. Mount Tecarte Land etc. Co., Ill Cal. "328, 43 Pac. 956, holding that a resolution of a corporation appointing a director as manager does not give the manager a right of action for salary based upon an obliga- tion in wri1ii;g); but an action to enforce contribution on a bond is within this sec- tion. Hewlett V. Beede, 2 Cal. App. 561; 83 Pac. 1086. A resolution of a board of directors, fixing the salary of an officer, is a contract in writing (Rosborough v. Shasta River Canal Co., 22 Cal. 556); but a resolution adopting plans and specifica- tions is not. Todd v. Board of Education, 122 Cal. 106; 54 Pac. 527; Foorman v. An action on an implied warranty of an ar- ticle, manufactured, on a written order, for a specific purpose, is founded on an instru- ment in writing, and is also within this section (Bancroft v. San Francisco Tool Co., 120 Cal. 228; 52 Pac. 496); as is also an action to recover rents due under a lease (Coyle v. Lamb, 123 Cal. 264; 55 Pac. 901), and an action to foreclose a mort- gage. Newhall v. Sherman, 124 Cal. 509; 57 Pac. 387; Moore v. Gould, 151 Cal. 723; 91 Pac. 616; California Title Ins. etc. Co. V. Miller, 3 Cal. App. 54; 84 Pac. 453. An action against a city and county treasurer and his sureties, for misappropriation of funds, is within this section (Priet v. De la Montanya, 85 Cal. 148; 24 Pac. 612); but where the primary obligation of the officer is barred, the sureties are relieved. Sonoma County v. Hall, 132 Cal. 589; 62 Pac. 257, 312; 65 Pac. 12, 459. A prom- ise, merely implied by law, and not sup- ported by any express terms in the written instrument, does not come within the stat- ute. Thomas v. Pacific Beach Co., 115 Cal. 136; 46 Pac. 899. An action to recover on a contract for street improvements in front of a government reservation in a city, is based either on a contract founded on an instrument in writing, or on an obli- gation or liability arising out of an assess- ment made in writing, and is within this section. Onderdonk v. San Francisco, 7i> 183 WITHIN FOUR YEARS. §337 Cal. 534; 17 Pac. 678. A naked receipt for money, not being a contract, does not import a promise or obligation (Ashley v, Vischer, 24 Cal. 322; 85 Am. Dec. 65; Scrivner v. Wood"ward, 139 Cal. 314; 73 Pac. 863), unless it expresses a promise. Ashley v. Vischer, 24 Cal. 322; 85 Am. Dec 65. Where lands, upon the death of a person, are impressed with the qualities of a resulting trust, such trust may be en- forced at any time within four years after such death. Keefe v. Keefe, 19 Cal. App. 310; 125 Pac. 929. The four-years limita- tion prescribed in this section is applicable to an action to recover a proportionate part of the expense of reclaiming land under a written agreement (Fabian v. Lam- mers, 3 Cal. App. 109; 84 Pac. 432), and to actions on interest coupons attached to bonds. California Safe Deposit etc. Co. v. Sierra Vallevs Ry. Co., 158 Cal. 690; Ann. Cas. 1912A,"'729; 112 Pac. 274. This sec- tion applies to an action to recover dam- ages for the breach of a written contract: such action is founded upon a written in- strument. Ahlers v. Smiley, 163 Cal. 200; 124 Pac. 827. Action upon account. Action on an ac- count stated is barred, unless brought within four years. Visher v. Wilbur, 5 Cal. App. 562; 90 Pac. 1065; 91 Pac. 412. Commencement of running of statute. A surety's liability is not discharged until four years after his liability has become fixed (Dussol v. Brnguiere, 50 Cal. 456) ; and the statute commences to run from the date of the affirmance of the judgment against him. Clark v. Smith, 66 Cal. 645; 4 Pac. 689; 6 Pac. 732. The statutory bar intervenes in four years from the date when the cause of action accrues. Banks V. Marshall, 23 Cal. 223; Pendleton v. Rowe, 34 Cal. 149; Hathaway v. Patterson, 45 Cal. 294; Hibernia Sav. & L. Soc. v. O'Grady, 47 Cal. 479. A demand note is due immediately upon delivery, and the statute commences to run from the date thereof, without demand. Jones v. Nicholl, 82 Cal. 32; 22 Pac. 878; Brummagim v. Tallant, 29 Cal. 503; 89 Am. Dec. 61; Bell V. Sackett, 38 Cal. 407; Collins v. Driscoll, 69 Cal. 550; 11 Pac. 244; O'Neil v. Magner, 81 Cal. 631; 15 Am. St. Rep. 88; 22 Pac. B76. The date of the delivery, and not the date of the note, fixes the period from which the statute runs against the action on the note. Collins v. Driscoll, 69 Cal. 550; 11 Pac. 244. An absolute and uncon- ditional guaranty of the payment of a note is broken when the note matures and remains unpaid; the statute runs from that date. Pierce v. Merrill, 128 Cal. 464; 79 Am. St. Rep. 56; 61 Pac. 64; Coburn v. Brooks, 78 Cal. 443; 21 Pac. 2; First Nat. Bank v. Babcock, 94 Cal. 96; 28 Am. St. Rep. 94; 29 Pac. 415; London etc. Bank V. Smith, 101 Cal. 415; 35 Pac. 1G27; Adams v. Wallace, 119 Cal. 67; 51 Pac. 14, The action against a surety on the bond of a public officer does not accrue until the expiration of the term of office (People v. Van Ness, 76 Cal. 121; 18 Pac. 139; People V. Burkhart, 76 Cal. 606; 18 Pac. 776), and the statute commences to run on the expiration of his term of office. San Francisco v. Heynemann, 71 Cal. 153; 11 Pac. 870; People v. Weineke, 122 Cal. 535; 55 Pac. 579 (holding that the statute begins to run from the date of the delin- quency). A devise to one for life, to go, upon the death of the devisee, to others, charged with the payment of a certain sum, does not cause the obligation of pay- ment to mature until the death of the devisee. Keir v. Keir, 155 Cal. 96; 99 Pac. 487. The statute does not commence to run against a cause of action to enforce specifically, against the distributee of the estate of a deceased person, a written agreement of the deceased to convey to an attorney an interest in a water right, in consideration of his services, to be per- formed in appealing a case, involving such right, to the supreme court, until the final judgment of that court on the appeal. Archer v. Harvey, 164 Cal. 274; 128 Pac. 410. It is a general rule, that the stat- ute does not begin to run, when no admin- istration exists on the decedent's estate at the time the cause of action accrues. Es- tate of Bullard, 116 Cal. 355; 48 Pac. 219; Hibernia Sav. & L. Soc. v. Boland, 145 Cal. 626; 79 Pac. 365; Heeser v. Taylor, 1 Cal. App. 619; 82 Pac. 977. Where a mortgagor dies after the statute has com- menced to run, an action, brought more than four years after the maturity of a note, and more than one year after admin- istration is awarded, is barred (McMillan V. Hayward, 94 Cal. 357; 29 Pac. 774); it may not be barred as against the estate, yet barred as to subsequent grantees made parties as claiming an interest in the prem- ises. Hibernia Sav. & L. Soc. v. Farnham, 153 Cal. 578, 583; 126 Am. St. Rep. 129; 96 Pac. 9. Where a note and mortgage are not mature at the date of the death of the mortgagor, the statute does not com- mence to run until letters of administra- tion are issued on the decedent's estate, regardless of the lapse of time prior thereto. Hibernia Sav. & L. Soc. v. Farn- ham, 153 Cal. 578; 126 Am. St. Rep. 129; 96 Pac. 9; Estate of Bullard, 116 Cal. 355; 48 Pac. 219; Hibernia Sav. & L. Soc. v. Herbert, 53 Cal. 375; Hibernia Sav. & L. Soc. V. Conlin, 67 Cal. 178; 7 Pac. 477; Danglada v. De la Guerra, 10 Cal. 386; Smith V. Hall, 19 Cal. 85. A mortgage by a third person, to secure the note of an- other, may be foreclosed within the statu- tory period, although the mortgagee has lost his right to enforce the note, by fail- ure to present it to the administrator of the deceased maker. Sichel v. De Carrillo, 42 Cal. 493. The death of one mortgagor §337 ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. 184 before the note is barred does not affect the bar of the statute as to his co-mort- gagor. Hibernia Sav. & L. Soc. v. "Wacken- reuder, 99 Cal. 503; 34 Pac. 219. The statute does not run on a promissory note from the date of its presentation to the executor or administrator, but from the date of its rejection by the judge. Nally V. McDonald, 66 Cal. 530; 6 Pac. 390. The cause of action to foreclose a mortgage ac- crues on the maturity of the note secured thereby (Belloc v. Davis, 38 Cal. 242; Mason v. Luce, 116 Cal. 232; 48 Pac. 72; Kichards v. Daley, 116 Cal. 336; 48 Pac. 220), notwithstanding a stipulation that, on default of the payment of interest, the same should become due and payable. Mason v. Luce, 116 Cal. 232; 48 Pac. 72; Belloc V. Davis, 38 Cal. 242. Where an action on a note secured by mortgage is barred, an action to foreclose the mortgage is also barred (Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754; Heinlin v. Castro, 22 Cal. 100; Booth V. Hoskins, 75 Cal. 271; 17 Pac. 225); and an assignee of the mortgagor mav plead the statute. McCarthy v. White, 21 'Cal. 495; 82 Am. Dec. 754; Grattan v. Wiggins, 23 Cal. 16. No time being speci- fied for payment in a mortgage or deed, the presumption is, that it is due imme- diately, and an action is barred in four years from the delivery thereof. Holmes v. West, 17 Cal. 623; Union Water Co. v. Murphy's Flat Pluming Co., 22 Cal. 620; Espinosa v. Gregory, 40 Cal. 58; Estate of Galvin, 51 Cal. 215; Dorland v. Dorland, €6 Cal. 189; 5 Pac. 77; Newhall v. Sher- man, 124 Cal. 509; 57 Pac. 387. A mort- gage to secure a debt, not evidenced by a ■written instrument, is also within the statute. Union Water Co. v. Murphy's Flat Pluming Co., 22 Cal. 620; Sargent v. Wil- son, 5 Cal. 504; Moss v. Warner, 10 Cal. 296; Mabury v. Ruiz, 58 Cal. 11. Where several notes, secured by the same mort- gage, fall due on different dates, the stat- ute begins to run from the date of matu- rity of each note. Hibernia Sav. & L. Soe. V. Herbert, 53 Cal. 375. Coupons on mu- nicipal bonds are not barred until the bonds to which they belong are barred (.Meyer v. Porter, 65 Cal. 67; 2 Pac. 884); but, in the absence of any promise to the contrary, the rule is, that the coupons are independent obligations, at least when de- tached and transferred; and the statute runs from the maturity of each (California Safe Deposit etc. Co. v. Sierra Vallevs Ey. Co., 158 Cal. 690; Ann. Cas. 1912 A, 729; 112 Pac. 274); and where the interest on a note is payable periodically, and on de- fault the whole becomes due and payable, the statute commences to run on the ma- turity of the note. Belloc v. Davis, 38 Cal. 242. An action for money, lost by deposit- ing it in a bank that failed, is within the statute, which begins to run from the date of the failure. San Diego County v. Dauer, 131 Cal. 199; 63 Pac. 338; and see People v. Van Ness, 79 Cal. 84; 12 Am. St. Rep. 134; 21 Pac. 554; Mason v. Luce, 116 Cal. 232; 48 Pac. 72; People v. Weineke, 122 Cal. 535; 55 Pac. 579. On a certificate of deposit issued by a bank, payable on demand, the statute begins to run from the date of issuance. Brummagim v. Tallant, 29 Cal. 503; 89 Am. Dec. 61. The statute does not begin to run, in the case of an express trust, until there is brought home to the plaintiff a knowledge of the repudiation of the trust, or violation of its terms by de- fendant. Allsopp v. Joshua Hendy Machine Works, 5 Cal. App. 228; 90 Pac. 39. In an action on a conditional or contingent contract, the cause of action accrues when the condition occurs. Wolf v. Marsh, 54 Cal. 228. An action on an independent covenant to pay the purchase-money for land, without any date fixed for the deliv- ery of the deed, is barred in four years from the date on which payment was to be made. Donovan v. Judson, 81 Cal. 334; 6 L. R. A. 591; 22 Pac. 682. Where a con- tract for the delivery of water fixes no time for delivery, but there is an admission that it was to be made on a certain date, the statute begins to run on the day thus fixed, where there is a failure to perform. Richter v. Union Land etc. Co., 129 Cal. 367; 62 Pac. 39. The cause of action on an indemnity bond against damages ac- crues when the one indemnified has paid. Oaks V. Scheifferly, 74 Cal. 478; 16 Pac. 252. If an action, as shown by the record, is not for an accounting, but for the breach of a contract to pay a sum when a sale was made, and the record is silent as to the date when the sale was made and the purchase-money paid, it shows no statutory bar of the cause of action. Parker v. Herndon, 19 Cal. App. 451; 126 Pac. 183. Interruption of running of statute. A distinction must be made between a new promise made before an action upon an original contract is barred, and one made thereafter; when it is made before, the debtor merely continues his liability for a longer term, and the action is based upon the original promise; in other words, he merely waives so much of the period of limitation as has run in his favor. Con- cannon V. Smith, 143 Cal. 14; 66 Pac. 40; Southern Pacific Co. v. Pressor, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145. An amended complaint setting up a new cause of action, where the bar has intervened after the commencement of the action, and before the filing of the amended complaint, is barred (Campbell v. Campbell, 133 Cal. 33; 65 Pac. 134; Anderson v. Mayers, 50 Cal. 525; Meeks v. Southern Pacific R. R. Co., 56 Cal. 513; 38 Am. Rep. 67; Spauld- ing V. Howard, 121 Cal. 194; 53 Pac. 563; Storer v. Austin, 136 Cal. 588; 69 Pac. 297; 185 WITHIN FOUR YEARS. §337 Jeffers v. Cook, 58 Cal. 147); but where the amendment does not set up a new cause of action, it is not. Rauer's Law etc. Co. V. LeflSngwell, 11 Cal. App. 494; 105 Pac. 427. The filing of the complaint sus- pends the running of the statute as to matters arising out of the transaction set forth therein. McDougald v. Hulet, 132 Cal. 154; 64 Pac. 278; Perkins v. West Coast Lumber Co., 120 Cal. 27; 52 Pac. lis. In the case of a note secured by a mortgage, the mortgagor cannot, as against subsequent lienholders, or the holder of the equity of redemption, prolong the period of the statute as to an action to foreclose on the security. Lord v. Morris, IS Cal. 482; McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754; Lent v. Morrill, 25 Cal. 492; Low v. Allen, 26 Cal. 141; Lent V. Shear, 26 Cal. 361. The prompt pay- ment of the interest on a note, on demand, when it falls due, does not extend the period within which an action may be brought to foreclose a mortgage given to secure the note (Pendleton v. Rowe, 34 Cal. 149); and where an action was commenced before the death of the maker, the filing of a supplemental complaint is not the commencement of a new action. Hibernia Sav. & L. Soe. v. Wackenreuder, 99 Cal. 503; 34 Pac. 219. An amendment to a complaint seeking a foreclosure relates back to the filing of the action, as against the original parties (Frost v. Witter, 132 Cal. 421; 48 Am. St. Rep. 53; 64 Pac. 705); and the filing of the complaint suspends the statute as to matters pleaded. Perkins V. West Coast Lumber Co., 120 Cal. 27; 52 Pac. 118; McDougald v. Hulet, 132 Cal. 154; 64 Pac. 278. An agreement to pay, made by a third person, in writing and for a valuable consideration, interrupts the running of the statute, and fixes a new date, from which the statute runs as to such third person. Hawk v. Barton, 130 Cal. 654; 63 Pac. 64. A new promise, made before the bar of the statute, removes the bar, and fixes a new period, from which the statute begins to run. Daniels v. .John- son, 129 Cal. 415; 79 Am. St. Rep. 123; 61 Pac. 1107. When an action is commenced within the period of the statute, the sub- stitution of the pledge securing the note is not the substitution of a new cause of action so as to raise the bar of the statute. Merced Bank v. Price, 9 Cal. App. 177; 98 Pac. 383. The renewal of a note secured by mortgage carries with it an extension of the lien of the mortgage. Lent v. Mor- rill, 25 Cal. 492. The lien is not extin- guished by lapse of time, so long as the principal obligation is not barred. Worth V. Worth, 15'5 Cal. 599; 102 Pac. 663. Where, in an action to quiet title, a mort- gage barred by the statute is set up, to which the statute is pleaded, a decree of foreclosure cannot be entered. Marshutz V. Seltzor, 5 Cal. App. 140; 89 Pac. 877. Where the real cause of action is for the recovery of money on a promissory note, a prayer for relief incidental thereto does not remove the bar of the statute. Clausen v. Meister, 93 Cal. 555; 29 Pac. 232. If a note secured by mortgage is presented as a claim against the estate of a deceased mortgagor, but the mortgage is not pre sented, the statute is not suspended as to the mortgage; and if not 7)rescnted within the time jirescribed, it is barred. Regents of University v. Turner, 159 Cal. 541; Ann. Cas. 1912C, 1162; 114 Pac. 842. The grantee of a mortgagor may avail himself of the bar of the statute, although the running thereof against the mortgagor has been interrupted by his death or by his absence from the state. California Title Ins. etc. Co. v. Miller, 3 Cal. App. 54; 84 Pac. 453. A sufficient acknowledgment, in writing, of the indebtedness takes it out of the operation of the statute. Worth v. Worth, 155 Cal. 599; 102 Pac. 663. An acknowledgment or promise, made while the original obligation is in force, is an original obligation, and lifts the bar of the statute. McCormack v. Brown, 36 Cal. ISO, 95 Am. Dec. 170; Chaffee v. Browne, 109 Cal. 211; 41 Pac. 1028; London etc. Bank V. Bandemann, 120 Cal. 220; 65 Am. St. Rep. 179; 52 Pac. 583; Southern Pacific Co. V. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42; Pierce v. Merrill, 128 Cal. 473; 79 Am. St. Rep. 63; 61 Pac. 67; Daniels v. Johnson, 129 Cal. 415; 79 Am. St. Rep. 123; 61 Pac. 1107; Concannon v. Smith, 134 Cal. 14; 66 Pac. 40; Newhall v. Hatch, 134 Cal. 269; 55 L. R. A. 673; 66 Pac. 266. If an unconditional acknowledgment or prom- ise is maiie after the original obligation is barred, the action is upon the implied promise raised by law from the new ac- knowledgment, or on the new express promise. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Chabot v. Tucker, 39 Cal. 434; Biddel v. Brizzolara, 56 Cal. 374; Lambert v. Schmalz, 118 Cal. 33; 50 Pac. 13; Southern Pacific Co. v. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; Rodgers v. Byers, 127 Cal. 52S; 60 Pac. 42; Concannon v. Smith, 134 Cal. 14; 66 Pac. 40; Dearborn v. Grand Lodge, 138 Cal. 658; 72 Pac. 154. The death of a mort- gagor, pending an action to foreclose, does not abate the action, but it may be prose- cuted against his representatives. Union Sav. Bank v. Barrett, 132 Cal. 453; 64 Pac. 713, 1071. Pleading. A party who assumes the pay- ment of a mortgage debt cannot plead the statute: all defenses against the mortgage, other than payment, are expressly waived. Davis V. Davis, 19 Cal. App. 797; 127 Pac. 1051. A party sued under a fictitious name cannot set up the intervention of the stat- ute, subsequently to the commencement of the action, by a disclosure of his true name. Hoffman v. Keeton, 132 Cal. 195; 64 Pac. 264; Farris v, Merritt, 63 Cal. 118; 1338 ACTIONS OTHER THAN FOR RECOVERY OF REAL PROPERTY. 186 Frost V. Witter, 132 Cal. 421; 84 Am. St. Eep. 53; 64 Pac. 705. The bar of the statute cannot be raised by demurrer, un- less it clearly appears on the face of the comjdaint. Lloyd v. Davis, 123 Cal. 348; 55 Pac. 1003. Where the new promise made is coupled with a condition, the sub- stituted conditional promise must be pleaded on an action brought after the bar has intervened on the original obligation. Curtis V. Sacramento, 70 Cal. 412; 11 Pac. 748; Eodgers v. Byers, 127 Cal. 528; 60 Pac. 42. Actions that must be brought within four years. See note post, § 343. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 343. 1. Construction of section. This section has been held to refer to contracts, obligations, and liabilities resting in or growing out of written in- struments, not remotely or ultimately, but imme- diately. Thus, where two persons executed a note, one as principal, and the other as surety, and a judgment obtained upon the note is paid by the surety, the obligation of the principal to pay the surety is not "founded upon a written instru- ment" within the meaning of this section. Chip- man V. Morrill, 20 Cal. 131. 2. What is a contract in writing. An order entered on the books of a corporation. A person acted for two years as president of a corporation, with an understanding that he should be paid, but with no agreement to that effect, or as to com- pensation. Having been re-elected for the third year, the trustees made an order as follows: "Or- dered that the compensation of the president be established at fifty dollars per month." And the person continued to serve for two years longer. Held: that such order was a contract to pay past as well as future services at the rate of fifty dol- lars per month and that the order was a contract in writing, within the meaning of the statute of limitations, both for past as well as present pay, and that the statute ran only from the date of the order. Rosborough v. Shasta River Canal Co., 22 Cal. 556. 3. Audited accounts. Accounts with the words "audited and approved" and "certified to be cor- rect." writt. n on their face, are instruments in writing, within the meaning of this section. San- nickson v. Brown. 5 Cal. 57. Statute runs from maturity of contract. The right of action upon a contract in writing is not barred until the lapse of four years after maturity. Bagley v. Eaton 10 Cal. 126. 4. Lost contract. The fact that the contract was in writing, and not the present existence of the writing itself, determines the time within which the action must be brought. Bagley v. Eaton. 10 Cal. 126. 5. Published offer of reward held to be a con- tract in writing, etc. Rver v. Stockwell, 14 Cal. 134; 73 Am. Dec. 634. 6. City bonds, and bonds of municipal corpora- tions, to provide for payment of indebtedness, when not barred by statute of limitations. Under- bill V. Trustees of City of Sonora, 17 Cal. 173. 7. Actions on promissory notes. Banks v. Mar- shall, 23 Cal. 223. 8. Certificates of deposit. And of the same nature as promissory notes are certificates of de- posit. The statute runs from the date, and no demand is required to set the statute in motion. Brumagim v. Tallant, 29 Cal. 503; 89 Am. Dec. 61. 9. Note and mortgage. A note payable six months after date, with interest monthly, in ad- vance, and "in case the said interest or any por- tion thereof, should become due, and remain unpaid after demand, then the mortgage given by me, of even date herewith, which is given to secure the payment of this note, may be foreclosed," etc.; and the mortgage contained a provision by which the mortgagee was "empowered to fore- close said mbrtgage, according to the provisions in said note contained." The court held that the prompt payment of the interest on demand, when it fell due. did not, under these clauses in the note and mortgage, prolong the time of payment beyond the time specified in the note, and that a cause of action accrued upon the note, and to foreclose the mortgage, immediately upon the expiration of the six months, although there had been no default in the payment of interest. An action not commenced within four years after the expiration of six months from date of the note, is barred by the statute of limitations. Pendleton v. Rowe, 34 Cal. 149. 10. Mortgage. A mortgage given to secure a payment of a dfbt, of which there is no written agreement, is yet a contract, "founded upon an instrument in writing'^; and an action may be had at any time within four years of the breach of the morteage, although the original debt has become barred. Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 620. 11. For actions of foreclosure and redemption, etc. See Grattan v. Wiggins, 23 Cal. 16; Cun- ningham V. Hawkins, 24 Cal. 403; 85 Am. Dec. 73. 12. Generally. See note to § 312, ante, com- menting on McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754: see Grattan v. Wiggins, 23 Cal. 16; see also Pearis v. Covillaud, 6 Cal. 617; 65 Am. Dec. 543; Lord v. Morris, 18 Cal. 482, com- mented on in note to § 312, ante. § 338. Within three years. 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 taking, detaining, or injuring any goods or chattels, in- cluding actions for the specific recovery of personal property; 4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. V. Robinson, 163 Cal. 648; 126 Pac. 485. Statutory penalty. See post, § 340. subd. 1. Executor or administrator. Limitation of ac- tions to set aside sale, three years. T'ust. § 1573. Corporations and stockholders, limitation as to. S.-.- post, § 359. Legislation 8 338. Enacted March 11, 1873; based on Stats. 1850, p. :!4:;. Construction of section. This section must be construed with § 318, ante. Unkel Similar statutes of limitation should re- ceive the same construction. Lightner Mining Co. v. Lane, 161 Cal. 689; Ann. Cas. 1913C, 1093: 120 Pac. 771. When section inapplicable. This section does not apply to an action to recover the amount of an assessment levied on the 187 WITHIN THREE YEARS. §338 capital stook of a corporation (Glenn v. Saxton, 68 Cal. 353; 9 Pac. 4-20); nor to an action against an innkeeper as the insurer of the goods and property of his guests (Churchill v. Pacific Improvement Co., 96 Cal. 490; 31 Pac. 460); nor to an action to recover a fund based upon a contract be- tween the state and the purchaser of swamp-lands (Miller & Lux v. Batz, 131 €al. 402; 63 Pac. 680); nor to an action for the actual damages presupposed in the treble damages provided for in § 3344 of the Political Code, for negligently causing loss bv fire (Phoenix Ins. Co. v. Pacific Lumber Co., 1 Cal. App. 156; 81 Pac. 976); nor to an action for breach of warranty (Brackett v. Martens, 4 Cal. App. 249; 87 Pac. 410; Murphy v. Stelling, 8 Cal. App. 702; 97 Pac. 672); nor to an action -against a bank, by one of its depositors, for damages resulting from its refusal to pay checks drawn upon it by the plaintiff. Smith's Cash Store v. First Nat. Bank, 149 Cal. 32; 5 L. R. A. (N. S.) 870; 84 Pac. 663. Liability created by statute. Where the liability of a defendant depends upon the provisions of a statute, and the relief de- manded by the plaintiff is derived from the statute, and, but for the statute, would Tiave no existence, the action is upon a liability created by statute, and is there- fore barred in three vears. Harby v. Board of Education, 2 Cal. App. 418; 83 Pac. 1081; and see Miller & Lux v. Batz, 142 €al. 447; 76 Pac. 42. The nature, and not the form, of the cause of action, deter- mines the applicability of the statute of limitations. Miller & Lux v. Batz, 131 Cal. 402; 63 Pac. 680. A proceeding in mandamus, to compel the issuance of a warrant for a claim duly audited, is within this section (Barber v. Mulford, 117 Cal. 356; 49 Pac. 206), as is also an action by the secretary of a county board of educa- tion to recover for services (Banks v. Yolo County, 104 Cal. 258; 37 Pac. 900); and an action against a recorder for the non-pay- ment of fees (Sonoma Countv v. Hall, 132 Cal. 589; 62 Pac. 257, 312; 65 Pac. 12, 459; Higbv V. Calaveras Countv, 18 Cal. 176; People V. Van Ness, 76 Cal, 121; 18 Pac. 139) ; and an action by a district attorney for commissions on moneys collected and ■debts recovered by him for the county (Higby V. Calaveras County, IS Cal. 176); and an action to recover municipal taxes 1 Canal etc. Co. v, Woodbury, 14 Cal. 265: Green v. Odd Fellows Savings etc. Bank, _ ., t> i • o^ n i rAo mi. «<^ n„i -71 o -D^^ OCT TVT-4. 1 11 T}^^i. Davidson V. Kankm, 34 Cal. 503. The ap- DO Cai. tl; 2 Pac. 887; Mitciiell v. Beck- ,. ,.,.. « ., . ' . . i- i- -i. .- • rvov, cA n„i 117 OQ -D., nn xxT n T?^ „ plicability of the statute of limitations is man, 64 Cal. 117 28 Pac. 110; Wells, i argo \ , • "^i , .. . ^ i.i, ■ i.. ■, & Co. V. Enright, 127 Cal. 669; 49 L. R. A. determined by the nature of the right sued 647; 60 Pac. 439! A deposit i^n a bank, of "?«"' 7* ^^ }^^ ^3,™ °^ ^^^ fTr''^^ shai^es of stock, as collateral security, is not "^^^J'n'"f°o.f.-Q?^ ^'^?o _ j„ _*i J! „ j_i j_ • _ 1113,, XDo V_ 3.1. CiO-i . y*! i 3C. ooi/. a deposit of money or other property ma' ' bank, within this section. Bell v. Bank of Running of statute of limitations against action California, 153 Cal. 234; 94 Pac. 889. It is Cas^iTI" '^^*°"* °^ ^°''^^' ^^^ """^^ ^ ^'^' uncertain whether there is any limitation to §349. Time for commencing actions under "local improvement act of 1901," Any action to contest an assessment levied by the legislative body of any municipality under the terms of the "loca' improvement act of 1901," must be commenced within thirty days after the entry upon the minutes of such legislative body of the resolution provided for in section eight of said "local improvement act of 1901." Legislation g 349. Added by Stats. 1901, p. 44. §§ 350, 351 GENERAL PROVISIONS AS TO TIME OF COMMENCING ACTIONS. 202 CHAPTER IV. GENEEAL PROVISIONS AS TO TIME OF COMMENCING ACTIONS. § 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. 60. Acknowledgment or new promise must be in writing. 61. Limitation laws of other states, effect of. 62. Existing causes of action not affected. 63. "Action" includes a special proceeding. §3 § 350. When an action is commenced. § 351. Exception, where defendant is out of the state. § 352. Exception, as to persons under disabil- ities. § 353. Provision where person entitled dies be- fore limitation expires. § 354. In suits by aliens, time of war to be deducted. § 355. Provision where judgment has been re- versed. § 356. Provision where action is stayed by in- junction. § 350. When an action is commenced. An action is commenced, within the meaning of this title, when the complaint is filed. Enacted March 11, 1873; Co., 61 Cal. 149. A counterclaim, which is not barred at the commencement of the action, may be set up. Perkins v. West Coast Lumber Co., 120 Cal. 27; 52 Pac. 118; Lyon V. Petty, 65 Cal. 322; 4 Pac. 103. Where a supplemental complaint is filed, bringing in new parties, as to such parties the suit is not commenced until the filing of the new pleading (Jeffers v. Cook, 58 Cal. 147; Spaulding v. Howard, 121 Cal. 194; 53 Pac. 563; Baker v. Baker, 136 Cal. 302; 68 Pac. 971; Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754; Lent v. Shear, 26 Cal. 361; Lawrence v. Ballou, 50 Cal. 258; Atkinson V. Amador etc. Canal Co., 53 Cal. 102), as it would be unjust to make defendants re- sponsible for proceedings of which they had no notice. Jeffers v. Cook, 58 Cal. 147. CODE COlVnvnSSIONEES' NOTE. Stats. 1850, p. 343. To prevent the bar of the statute of limitations, no other proeieding is necessary, ex- cept filing the complaint, when, for all purposes of the statute, the action is commenced. The is suance of summons is not necessary to the com- mencement of the action. Sharo v. Maguire, 19 Cal. 577. See also Allen v. Marshall, 34 Cal. 166; Pimental v. San Francisco, 21 Cal. 351; Adams V. Patterson, 35 C4I. 122. Legislation § 350. based on Stats. 1850, p. 343 When an action is commenced. An ac- tion is commenced, as to the parties named, when the complaint is filed in the proper court, so far as the statute of limitations is concerned, and, to prevent the bar, no other proceedings are necessary. Sharp v. Maguire, 19 Cal. 577; Pimental v. San Francisco, 21 Cal. 351; Allen v. Marshall, 34 Cal. 165; Jeffers v. Cook, 58 Cal. 147. The issuance of a summons is not neces- sary to the commencement of an action (Sharp V. Maguire, 19 Cal. 577; Pimental V. San Francisco, 21 Cal. 351; Allen v. Marshall, 34 Cal. 165) ; but this section applies only to the statute of limitations, and not to actions which must be com- menced by filing a complaint and issuing a summons. Flaudreau v. White, 18 Cal. 639; Sharp V. Maguire, 19 Cal. 577. A new cause of action set out, or a cause of action extended to property not embraced in the original complaint, does not relate back, for the purpose of interrupting the statute of limitations, to the date of filing the original complaint. Anderson v. Mayers, 50 Cal. 525; Meeks v. Southern Pacific E. E. § 351. Exception, where defendant is out of the state. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his 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. Legislation §351. Enacted March 11, 1873; based on Stats. 1850, p. 343. Absence from the state. When the de- fendant is absent from the state at the time of the maturity of his obligation, the statute does not commence to run until he returns to the state (Dougall v. Sehulen- berg, 101 Cal. 154; 35 Pac. 635; ChappeH V. Thompson, 21 Cal. App. 136; 131 Pac. 82; McCormick v. Marcy, 1G5 Cal. 386; 132 Pac. 449), and the time of his absence is to be deducted from the whole time run (Stone V. Hammell, 83 Cal. 547; 17 Am. St. Eep. 272; 8 L. E. A. 425; 23 Pac. 703; San- ford V. Bergin, 156 Cal. 43; 103 Pac. 333; King V. Armstrong, 9 Cal. App. 368; 99 Pac. 527); and successive absences from the state must be deducted from the whole time run since the cause of action accrued. Eogers v. Hatch, 44 Cal. 280; Watt v. Wright, 66 Cal. 202; 5 Pac. 91. When the period of limitation has once begun to run, it cannot, except as provided by statute, be postponed, suspended, or interrupted by any subsequent condition. Congregational Church Bldg. Soc. v. Osborn, 153 Cal. 197; 203 EXCEPTION, AS TO PERSONS UNDER DISABILITIES. §352 94 Pac. 881. The word "return," in this section, applies to persons coming from abroad, as well as to citizens of this coun- try going abroad, for a temporary purpose, and then returning. Palmer v. Shaw, 16 Cal. 93; Rogers v. Hatch, 44 Cal. 280. A clandestine return to the state, with in- tent to defraud a creditor, by setting the statute in operation, and then departing, is not such a return as the statute contem- plates, and has not the effect of setting the statute in motion. Palmer v. Shaw, 16 Cal. 93; Stewart v. Stewart, 152 Cal. 162; 14 Ann. Cas. 940; 92 Pac. 87. Where a debtor departs from the state, and returns openly, the fact that the creditor did not learn of his presence here is immaterial in determining whether the statute has run. Stewart v. Stewart, 152 Cal. 162; 14 Ann. Cas. 940; 92 Pac. 87. This section does not deprive non-residents of the benefits of the statute of limitations: it merely ex- cludes from computation the time during which any defendant, resident or non- resident, may have been out of the state. Foster v. Butler, 164 Cal. 623; 130 Pac. 6. The absence of a co-surety from the state does not extend the time within which an action may be brought against the prin- cipal (Stone V. Hammell, S3 Cal. 547; 17 Am. St. Rep. 272; 8 L. R. A. 425; 23 Pac. 703); and the absence of a mortgagor from the state does not interrupt the running of the statute as to subsequent lienhoklers, or holders of the equity of redemption. Watt V. Wright, 66 Cal. 202; 5 Pac. 91. The mortgagor has no power, by stipula- tion, to prolong the time of payment, or in any manner to increase the burdens on mortgaged premises. Wood v. Goodfellow, 43 Cal. 185; Lord v. Morris, 18 Cal. 482; Lent V. Morrill, 25 Cal. 492; Lent v. Shear, 26 Cal. 361; Barber v. Babel, 36 Cal. 11; § 352. Exception, as to persons under disabilities. If a person entitled to bring an action, mentioned in chapter three 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 execution under the sentence of a criminal court for a term less than for life ; or, 4. A married woman, and her husband be a necessary party with her in commencing such action : — The time of such disability is not a part of the time limited for the com- mencement of the action. Sichel V. Carrillo, 42 Cal. 493. A corpora- tion, domiciled in another state, with an agent in this state in possession of land for and in behalf of the corporation, is not absent from the state, within the mean- ing of this section, and is entitled to set up the bar of the statute as a defense (Lawrence v. Biillou, 50 Cal. 258); but a failure to ai)point such agent, and prove the fact at the trial, depiives a foreign corporation of the right to plead the stat- ute. O'Brien v. Big Casino Gold Mining Co., 9 Cal. App. 283; 99 Pac. 209. The absence from the state of the trustee of an express trust in land does not relieve the injured party from bringing an action within the limited time (Seculovich v. Morton, 101 Cal. 673; 40 Am. St. Rep. 106; 36 Pac. 387), as absence from the state, in such a case, does not deprive the plain- tiff of a remedy. Perkins v. Wakeham, 86 Cal. 580; 21 Am. St. Rep. 67; 25 Pac. 51; Seculovich v. Morton, 101 Cal. 673; 40 Am. St. Rep. 106; 36 Pac. 387. The plaintiff must allege absence from the state on the part of the defendant, where such fact is relied upon to take the case out of the statute (Bass v. Berry, 51 Cal. 264; Dougall V. Schulenberg, 101 Cal. 154; 35 Pac. 635); but this general exception does not apply to an action upon a stockholder's liability, which is governed by § 359, post. King v. Armstrong, 9 Cal. App. 368; 99 Pac. 527. What constitutes absence from state. See note 83 Am. Dee. 644. Return of debtor to state sufficient to start statute of limitations running. See note 14 Ann. (a.s. 941. What constitutes "residence out of the state" within meaning of statute. See note 17 L. R. A. (N. S.) 225. CODE COMMISSIONERS' NOTE. Stats. 1850, p 343. See Palmer v. Shaw, 16 Cal. 93; Nelson V. Nelson, 6 Cal. 430. Disabilities stopping running of statute. See ante, § 328. Legislation 8 352. 1. Enacted March 11, 1872; based on Stats. 1863, p. 326. 2. Amendment by Stats. 1901, p. 125; un- constitutional. See note ante, § 5. Within the age of majority. An infant may bring an action within the statutory time after attaining his majority. Morrell V. Morgan, 65 Cal. 575; 4 Pac. 580; Crosby V. Dowd, 61 Cal. 557. Disabilities which stop the running of the statute. See ante, § 328, and note. Disabilities which interrupt operation of stat- ute of limitations. See note 36 Am. Dec. 68. Interruption of running of statute of limita- tions on account of infancy of heir, devisee or dis- tributee. See note 3 Ann. Cas. 837. §§ 353, 354 GENERAL PROVISIONS AS TO TIME OF COMMENCING ACTIONS. 204 CODE COMMISSIONERS' NOTE. Stats. 1863, iT Action to set aside deed of insane man. If a person, while insane, is fraudulently induced to execute a conveyance of his property lo another, the statute of limitations will not com- mence running against the grantor's right to com- mence an action to set aside the deed until he recovers his reason and discovers what he has done. Crowther v. Rowlandson, 27 Cal. 376. 2. Married women. The statute runs against a married woman in all those actions to which her husband is not a necessary party with her, in commoncing the action the same as other par- ties. "Wilson V. Wilson, 36 Cal. 447; 95 Am. Dec. 194. 3. Separate property. Actions may be brought by the wife, when they concern her separa+e property, or are against her husband, etc. Wil- son V. Wilson, 36 Cal. 447 ; 95 Am. Dec. 194. § 353. Provision where person entitled dies before limitation expires. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within six months from his death. If a person 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 the issuing of letters testamentary or of adminis- tration. Substitution of parties. See post, § 38.5. Survival of actions. See post, §§ 385, 1582, 1584. "Action" includes special proceeding of civil nature. See post, § 363. Claim against decedent's estate which has been ailowed, not aSected by statute. See post, § 1569. Legislation § 353. Enacted March 11, 1ST3; based on Stats. 1850, p. 343. Effect of death on running of statute. This section is applicable only to causes of action against which the statute has com- menced to run (Smith v. Hall, 19 Cal. 85); it is imperative, and applies to all claims arising upon a contract (Estate of Hilde- brandt, 92 Cal. 433; 2S Pac. 4SS); and while the first clause may, under some cir- cumstances, prolong the time originally limited, yet it cannot operate, in any case, to shorten it. Lowell v. Kier, 50 Cal. 646; Smith V. Hall, 19 Cal. So. Action by representative of deceased. This section does not apply to an action upon a claim against the estate of another deceased person (Morrow v. Barker, 119 Cal. 65; 51 Pac. i2), nor to an action to cancel a deed for fraud and undue influ- ence, and to recover an interest in the real propertv so obtained. Page v. Garver, 146 Cal. 577; 80 Pac. 860. Action against representatives of de- ceased person. The statute does not com- mence to run, where administration has not been granted on an estate (Danglada v. De la Guerra, 10 Cal. 386; Smith v. Hall, 19 Cal. 85; Estate of Bullard, 16 Cal. 355; 48 Pac. 219; Tynan v. Walker, 35 Cal. 634; 95 Am. Dec. 152; Hibernia Sav. & L. Soc. v. Herbert, 53 Cal. 375; Casev v. Gibbons, 136 Cal. 368; 68 Pac. 1032); iior on an ac- tion to foreclose a mortgage not due at the death of the mortgagor, while there is no administration on the mortgagor's estate (Heeser v. Taylor, 1 Cal. App. 619; 82 Pac. 977); it does not necessarily extend the time for commencing an action against the personal representatives of a deceased per- son; it only gives the plaintiff one year for the appointment of the representative, where he has not that much time under the statute of limitations (McMillan v. Hay- ward, 94 Cal. 357; 29 Pac. 774); but the statute is suspended only as to the repre- sentative of the deceased person; as to the grantee of the mortgaged premises, the statute commences to run on the death of the party, regardless of the appointment of the administrator. California Title Ins. etc. Co. V. Miller, 3 Cal. App. 54; 84 Pac. 453. A mortgage is not required to be presented to the representative of the mortgagor (Hibernia Sav. & L. Soc. v. Con- lin, 67 Cal. 178; 7 Pac. 477); but other claims must be presented to the adminis- trator. Morrow v. Barker, 119 Cal. 65; 51 Pac. 12; Tvnan v. Walker, 35 Cal. 634; 95 Am. Dee. 152; Siehel v. Carrillo, 42 Cal. 493. Where a mortgage is given to secure debts payable in installments, the statute runs against such installment from its ma- turity. Hibernia Sav. & L. Soc. v. Herbert, 53 Cal. 375; Tyuan v. Walker, 35 Cal. 634; 95 Am. Dec. 152. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 343. 1. "If a person against whom an action may be brought die," etc. See Smith v. Hall, 19 Cal. 85. 2. Estates of deceased persons. Administra- tion not granted. A note due shortly after the death of the maker, in 1852, letters of adminis- tration were issued in 1856, and no notice to creditors having befti published, the note was presented to the administrator in 1859 and re- jected. Suit was brought on the claim immedi- ately after rejection. Held: the note was not barred by the statxite of limitations. Smith v. Hall, 19 Cal. 85. The statute of limitations does not begin to run, when no administration exists on decedent's estate at the time the cause of ac- tion accrued. Danglada v. De la Guerra, 10 Cal. 386: Smith v. Hall, 19 Cal. 85; see also Soto v. Kroder, 19 Cal. 87. § 354. In suits by aliens, time of war to be deducted. When a person is an alien subject, or citizen of a country at war wdth the United States, the 205 REVERSAL ACTION STAYED — DISABILITY — LIMITATION. §§355-359 time of the continuance of the war is not part of the period limited for the commencement of the action. Legislation 8 354. Enacted March 11, 1873; CODE COMMISSIONERS' NOTE. Stats. 1850, based on Stats. 1850, p. 343. p. 34:j. § 355. Provision where judgment has been reversed. If an action is com- menced within the time prescribed therefor, and a judg'ment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year af .er the reversal. Legislation § 355. 1. Enacted March 11, 1872; 59-; 70 Pac. 556. A reversal upon appeal '^t'Xmendment'b;* gtatl'-1901, p. 125; un- ^oes not include an annulling upon a writ constitutional. See note ante, §5. of review. Fay V. Costa, 2 Cal. App. 241; New actions. This section permits a new °^ Fac 275. action of any kind, having for its result CODE COMMISSIONERS' NOTE. Stats. 1850, the same relief as was obtained in the P- 343. original action. Kenney v. Parks, 137 Cal. §356. Provision where action is stayed by injunction. When the com- mencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. Legislation § 356. Enacted March 11, 1873; 1S9; 59 Pac. 834. The statute does not based on Stats. 1850, p. 343. commence to run during the pendency of Action stayed by injunction or statutory insolvency proceedings. Union Collection prohibition. Where an action is stayed by Co. v. Soule, 141 Cal. 99; 74 Pac. 549. A a proceeding in bankruptcy, the time of statutory prohibition, which is not consti- such suspension is deducted from the time tutional, is not within this section, as it prescribed by statute (Hoff v. Funken- cannot operate to suspend the statute, stein, 54 Cal. 233), and the period from Bates v. Gregory, 89 Cal. 3S7; 26 Pac. 8'91. the time on which the claim is presented The theory of the statute of limitations is, by the administrator until its rejection by that the creditor has the full statutory the judge, is not included in computing the time, whatever it may be, during which he running of the statute against the action may, of his own volition, commence an ac- (Nally V. McDonald, 66 Cal. 530; 6 Pac. tioii. Hoff v. Funkenstein. 54 Cal. 233. 390) ; but the insolvency of a debtor does ^ PvfPTifl thp timp within whifh nn no- Suspension of statute by injunction. See notes not extena tne time witnm wnicn an ac 4 ^^^^_ ^.^^ ^4.^. gg ^ ^ j^_ ^^g; 3 L. R. A. tion must be commenced to foreclose a (n. S.) 1187; 28 L. R. A. (N. S.) 673. mechanic's lien. Bradford v. Dorsey, 63 cOBB COMMISSIONERS' NOTE. Stats. 1850 Cal. 122; Barclay v. Blackmton, 127 Cal. p. 343. § 357. Disability must exist when right of action accrued. No person can avail himself of a disability, unless it existed when his right of action accrued. Successive disabilities. See post, § 353; ante, based on Stats. 1850, p. 343. ^ ^^^' CODE COMMISSIONERS' NOTE. Stats. 1850, Legislation § 357. Enacted March 11, 1873; p. 343. § 358. When two or more disabilities exist, etc. When two or more dis- abilities coexist at the time the right of action accrues, the limitation does not attach until they are removed. Legislation § 358. Enacted March 11, 1873; CODE COMMISSIONERS' NOTE. Stats. 1850, based on Stats. 1850, p. 343. p. 343. § 359. This title not applicable to actions against directors, etc. Limita- tions in such cases prescribed. This title does not affect actions against directors or stockholders of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law ; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created. § 359 GENERAL PROVISIONS AS TO TIME OF COMMENCING ACTIONS. 206 Director's personal liability. See Civ. Code, § 309. Legislation § 359. Enacted March 11, 1873; based on Stats. 1850, p. 343. Actions against directors and stockhold- ers of corporations. An action to enforce the liability of stockholders is within this section (Green v. Beckman, 59 Cal. 54.5; Hunt V. Ward, 99 Cal. 612; 37 Am. St. Rep. 87; 34 Pac. 335; Moore v. Boyd, 74 Cal. 167; 15 Pac. 670; O'Neill v. Quarnstrom, 6 Cal. App. 469; 92 Pac. 391; King v. Arm strong, 9 Cal. App. 368; 99 Pac. 527); and the giving of a note as evidence of the debt does not extend the time for bringing the action. O'Neill v. Quarnstrom, 6 Cal. App. 469; 92 Pac. 391. Such an action is also an obligation arising ou contract. Kennedv v. California Sav. Bank, 97 Cal. 93; 33 Am. St. Eep. 163; 31 Pac. 846; Lon- don etc. Bank v. Parrott, 125 Cal. 472; 73 Am. St. Rep. 64; 58 Pac. 164. An attempt is not made by this section to relieve a stockholder from his liability (Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407; 58 Pac. 85) ; but it provides that the action must be commenced within three years from the date on which the debt is created, whether the cause of action has matured or not. Green v. Beckman, 59 Cal. 545; Moore v. Boyd, 74 Cal. 167; 15 Pac. 670; Hyman v. Coleman, 82 Cal. 650; 16 Am. St. Rep. 178; 23 Pac. 62; Hunt v. Ward, 99 Cal. 612; 37 Am. St. Rep. 87; 34 Pac. 335; Bank of San Luis Obispo v. Pacific Coast S. S. Co., 103 Cal. 594; 37 Pac. 499; Wells v. Black, 117 Cal. 157; 59 Am. St. Rep. 162; a7 L. R. A. 619; 48 Pac. 1090; Johnson v. Bank of Lake, 125 Cal. 6; 73 Am. St. Rep. 17; 57 Pac. 664; London etc. Bank v. Parrott, 125 Cal. 472; 73 Am. St. Rep. 64; 58 Pac. 164; Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407; 58 Pac. 85; Goodall v. Jack, 127 Cal. 258; 59 Pac. 575; Ryland v. Commercial etc. Bank, 127 Cal. 525; 59 Pac. 989; Jones V. Goldtree Bros. Co., 142 Cal. 383; 77 Pac. 939; Cook v. Ceas, 143 Cal. 221; 77 Pac. 65; O'Neill v. Quarnstrom, 6 Cal. App. 469; 92 Pac. 391. An action against a stock- holder to enforce a liability created by law is barred by the lapse of three years after the liability is created, although during a part of the time he was absent from the state. King v. Armstrong, 9 Cal. App. 368; 99 Pac. 527; O'Neill v. Quarnstrom, 6 Cal. App. 469; 92 Pac. 391. An action to en- force the statutory liability imposed by the laws of a sister state upon the stockhold- ers of a banking corporation is barred in three years after the liability is created. Miller v. Lane, 160 Cal. 90; 116 Pac. 58. A stockholder's responsibility com- mences with that of the corporation, and continues during the period of the exist- ence of the indebtedness (Mokelumne Hill etc. Mining Co. v. Woodbury, 14 Cal. 265; Davidson v. Rankin, 34 Cal. 503); but the suspension of the remedy of the corpora- tion does not stop the running of the stat- ute (Young V. Rosenbaum, 39 Cal. 646; Hyman v. Coleman, 82 Cal. 650; 16 Am. St. Rep. 178; 23 Pac. 62; O'Neill v. Quarn- strom, 6 Cal. App. 469; 92 Pac. 391); neither does the extension of the time of payment in favor of the corporation toll the statute to enforce the stockholder's liability. Hyman v. Coleman, 82 Cal. 650; 16 Am.' St. Rep. 178; 23 Pac. 62; Redington V. Cornwell, 90 Cal. 49; 27 Pac. 40. The liability of the stockholder is separate and independent, founded and depending upon the original liability of the corporation; and the statute begins to run in favor of the stockholder from the date of the exe- cution of a note, not from its maturity. Hunt V. Ward, 99 Cal. 612; 37 Am. St. Reip. 87; 34 Pac. 335; Bank of San Luis Obispo V. Pacific Coast S. S. Co., 103 Cal. 594; 37 Pac. 499. The statute does not commence to run against an action to enforce the personal liability of the stockholder, until the accrual of a cause of action against the corporation. .Johnson v. Bank of Lake, 125 Cal. 6; 73 Am. St. Rep. 17; 57 Pac. 664; State v. McCauley, 15 Cal. 429; Mc- Bean v. Fresno, 112 Cal. 159; 53 Am. St. Rep. 191; 31 L. R. A. 794; 44 Pac. 358. Thus, an action against a stockholder, to recover a deposit with a bank, must be commenced within three years after the date of the deposit (Creen v. Beckman, 59 Cal. 545; Nellis v. Pacific Bank, 127 Cal. 166; 59 Pac. 830), as the debt was created and the liability incurred at the time of the acceptance of each of the deposits, and at the expiration of three years the stock- holder's liability is at an end. Wells v. Black, 117 Cal. 157; 59 Am. St. Rep. 162; 37 L. R. A. 619; 48 Pac. 1090; Hunt v. Ward, 99 Cal. 612; 37 Am. St. Rep. 87; 34 Pac. 335; Bank of San Luis Obispo v. Pacific Coast S. S. Co., 103 Cal. 594; 37 Pac. 499; Nellis v. Pacific Bank, 127 Cal. 166; 59 Pac. 830. The right of action against the stockholder, on account of his indi- vidual responsibility for the debts and lia- bilities of the corporation, accrues at the same time as the right of action against the corporation, and is not contingent on a recovery against the corporation. Da- vidson V. Rankin, 34 Cal. 503; Mokelumne Hill etc. Mining Co. v. Woodbury, 14 Cal. 265; Larrabee v. Baldwin, 35 Cal. 155; Young v. Rosenbaum, 39 Cal. 646; Stilphen V. Ware, 45 Cal. 110; Hyman v. Coleman, 82 Cal. 650; 16 Am. St. Rep. 178; 23 Pac. 62. The payment of a note by the sureties of a corporation creates a new and inde- pendent liability on the part of the stock- holders for the debt thus paid, which lia- I bility accrues on the date on which the note is paid by the sureties, and is barred in three years thereafter (Ryland v. Com- mercial etc. Bank, 127 Cal. 525; 59 Pac. 989) ; but a principal debtor is not a surety. Mokelumne Hill etc. Mining Co. v. Woodbury, 14 Cal. 265; Davidson v. Ran- kin, 34 Cal. 503; Young v. Rosenbaum, 39 207 ACKNOWLEDGMENT OR NEW PROMISE MUST BE IN WRITING. §360 Cal. 646; Neilson v. Crawford, 52 Cal. 248; Sonoma Valley Bank v. Hill, 59 Cal. 107; Morrow v. Superior Court, 64 Cal. 383; 1 Pac. 354; Hvman v. Coleman, 82 Cal. 650; 16 Am. St. Kep. 178; 23 Pac. 62. Overdrafts create a primary liability as they occur, and the statute runs in favor of the stockholder from the date thereof. Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407; 58 Pac. 85. Where a corporation guarantees the future payment of a note, liability is barred within three years from the date of guaranty. First Nat. Bank v. Consolidated Lumber Co., 16 Cal. App. 267; 116 Pac. 680. All the statutory provisions on the subject of the statute of limitations are to be considered together and con- strued in view of the presumption that the legislators are acfpiainted with well-settled principles of law, and that they legislate with reference thereto. Pryor v. Winter, 147 CaL 554; 109 Am. St. Rep. 162; 82 Pac. 202. Actions to enforce stockholders' liabil- ity. See note ante, § 338. Limitation of actions against stockholders or corporate officers. Stf note 96 .Am. St. lie p. 9":!. Limitation of action to enforce stockholder's statutory liability. .See note 3 .Vnn. ('as. .'iO.'>. Accrual of right of action to put statute of limitations into operation as to stockholder's lia- bility for corporate debts. See note 10 L. K. A. (N. S.) 897. CODE C0MMI3SI0NERS' NOTE. Stats. 18.50, p. 343. § 360. AcknowledgTiient or new promise must be in writing. No ac- knowledgment or promise is sufficient evidence of a new or continuing con- tract, 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. however (Sanford v. Bergin, 156 Cal. 43; Legislation § 360. Enacted March 11, 1873; based on Stats. 1850, p. 343. New or continuing contract. The con- sideration for a new promise is the original contract, or the moral obligation arising thereon, binding in foro conscientis, not- withstanding the bar of the statute (Mc- Cormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Chabot v. Tucker, 39 Cal. 434; Wells v. Harter, 56 Cal. 342; Curtis v. Sacra- mento, 70 Cal. 412; 11 Pac. 748; Concan- non V. Smith, 134 Cal. 14; 66 Pac. 40), and it is this new contract that gives the right to recover. Wells v. Harter, 56 Cal. 342. There is a distinction to be observed, where the acknowledgment or new promise is made after maturity and before the bar of the statute, and where it is made after the bar has intervened; in the former case, the action is upon the original contract, the bar of the statute having been lifted and removed (McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Chaffee v. Browne, 109 Cal. 211; 41 Pac. 1028; South- ern Pacific Co. V. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42); in the latter case, the action is upon the new promise. Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42; Coneannon v. Smith, 134 Cal. 14; 66 Pac. 40. The action must be brought upon the original promise or contract, where the ac- Icnowledgment or new promise is made before the bar of the statute (Southern Pacific Company v. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145); but under the new promise, where made after the bar has intervened. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Chaffee v. Browne, 109 Cal. 211; 41 Pac. 1028; South- ern Pacific Co. V. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42; Sanford v. Ber 103 Pac. 333), unless the statute has not run before the promise. President and Board of Trustees v. Stephens, 11 Cal. App. 523; 105 Pac. 614. The action upon the new promise must be commenced within four years from the date of the new promise. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Rodgers v. Byers, 127 Cal. 528; 60 Pac. 42. The new prom- ise, to revive the cause of action, must contain an acknowledgment from which the law will imply a promise to pay, and be a direct and unqualified admission of an existing debt. Visher v. Wilbur, 5 Cal. App. 562; 90 Pac. 1065; 91 Pac. 412; President and Board of Trustees v. Ste- phens, 11 Cal. App. 523; 105 Pac. 614. Acknowledgment or new promise must be in writing. To take the debt out of the bar of the statute, or to lift or remove the bar, the acknowledgment must be in writ- ing. Pefia v. Vance, 21 Cal. 142; Heinlin v. Castro, 22 Cal. 100; Porter v. Elam, 25 Cal. 291, 292; 85 Am. Dec. 132; Estate of Gal- vin, 51 Cal. 215; Biddel v. Brizzolara, 56 Cal. 374; Booth v. Hoskins, 75 Cal. 271; 17 Pac. 225; Pierce v. Merrill, 128 Cal. 473; 79 Am. St. Rep. 63; 61 Pac. 67; Higgins V. Graham, 143 Cal. 131; 76 Pac. 898. Oral promises are not suflScient to take the case out of the two-year limita- tion. Rose v. Foord, 3 Cal. Unrep. 438; 28 Pac. 229. A rehearing was denied in Rose v. Foord, 96 Cal. 152, 30 Pac. 1114, holding that no new cause of action arises to re- cover the purchase-money until demand made, and that the statute does not com- mence to run until then. To revive a claim barred by the statute, a writing is essential, and it must contain either an express or an implied promise to pay an existing debt; in the absence of an express gin, 156 Cal. 43; 103 Pac. 333. The new promise, the acknowledgment must t»e un- promise to pay the debt does not revive equivocal, and must contain a direct and the lien of the mortgage which secures it, unqualified admission of an existing debt §360 geneeaij provisions as to time op commencing actions. 208 for which the party is liable, and which he is willing to par. Visher v. Wilbur, 5 Cal. App. 562; 90 Pac. 1065; 91 Pac. 412. A mortgage barred by the statute is not re- newed by a renewal of the note (Wells v. Harter, 56 Cal. 342; Southern Pacific Co. V. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; Biddel v. Brizzolara, 56 Cal. 374); nor is the oral settlement of an ac- count sufficient to take items out of the statute, where it is already barred. Auzerais v. Na2;lee, 74 Cal. 60; 15 Pac. 371; Kahn v, Edwards, 75 Cal. 192; 7 Am. St. Eep. 141; 16 Pac. 779; Baird v. Crank, 98 Cal. 293; 33 Pac. 63. An acknowledg- ment of a debt operates to start a new period of limitation. Moore v. Gould, 151 Cal. 723; 91 Pac. 616. There is that sort of an implied acknowledgment, that may be inferred in the case of every ofi'er or promise, that the amount offered or prom- ised tu be paid is or will become due; but it is not the aclNiiowledgment required by the statute, and it is of no avail to the plain- tiff, because uo promise arises therefrom by implication; it would be illogical to infer from any offer or promise to pay a given sum of money upon the original con- tract, an acknowledgment, or to infer a promise more ■ comprehensive than that from which the acknowledgment was im- plied; an offer or promise to pay a certain sum, or to deliver any article of value at a specified time, in satisfaction of the original debt upon which the statute has run, cannot, by this inverse implication, be construed as evidence of a promise to pay the whole debt, without a plain perversion of the meaning and intention of the provis- ion of the statute. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. An exten- sion of time for the payment of a debt, signed by the payee, raises an estoppel to plead the statute. Quanchi v. Ben Lomond Wine Co., 17 Cal. App. 565; 120 Pac. 427. Signed by the party to be charged. The writing must be signed by the debtor (Es- tate of Galvin, 51 Cal. 215; Borland v. Borland, 66 Cal. 189; 5 Pac. 77); and it is not sufficient, unless so signed. Baird v. Crank, 98 Cal. 293; 33 Pac. 63. A sub- scription by the debtor is not necessary, if it is evident, from any part of the instru- ment or acknowledgment, that the debtor Qamed in it has given to it his assent; and if an attestation appears anywhere upon the face of the writing, it is sufficient, and the party thus attesting is bound as effec- tually as if he had subscribed his name at the foot (Auzerais v. Naglee, 74 Cal. 60; 15 Pac. 371); but the written acknowledg- ment or new promise must be a distinct, direct, unqualified, and unconditional ad- mission of the existence of the debt for which the party is liable and willing to pay. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; FarrL'll v. Palmer, 36 Cal. 187; Biddel v. Brizzolara, 56 Cal. 374; Southern Pacific Co. v. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145; Pierce v. Merrill, 128 Cal. 473; 79 Am. St. Rep. 63; 61 Pac. 67; Curtis v. Sacramento, 70 Cal. 412; 11 Pac. 748. The purpose of this sec- tion is, to establish a rule, not with respect to the character of the promise or ac- knowledgment from which the promise may be inferred, but with respect to the kind of evidence by which the promise or acknowledgment shall be proved. Biddel V. Brizzolara, 56 Cal. 374; Tuggle v. Minor, 76 Cal. 96; 18 Pac. 131. This statute does not purport to make any changes in the effect of acknowledgments or promises, but simply to alter the mode of their proof. Barron v. Kennedy, 17 Cal. 574; Concannon V. Smith, 134 Cal. 14; 66 Pac. 40. An acknowledgment by one joint obligor is not available to take the debt out of the bar of the statute as to the others, unless made with their authority. McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754; Lord v. Mor- ris, 18 Cal. 482. Where there is but one debt or obligation, an acknowledgment and promise, otherwise sufficient, to pay "our indebtedness," is sufficient under this sec- tion. Belloc V. Davis, 38 Cal. 242. A promise to pay is raised by implication of law from an unqualified acknowledgment (Biddel v. Brizzolara, 56 Cal. 374) ; but if the acknowledgment is accompanied by such qualifying expressions or circum- stances as repel the idea of a contract to pay, excejit to the extent or upon the con- ditions named, no implied promise to pay absolutely is created. Biddel v. Brizzolara, 56 Cal. 374; Curtis v. Sacramento, 70 Cal. 412; 11 Pac. 748. The positive acknowl- edgment of a pre-existing debt is insuffi- cient, if accompanied by a declaration which is inconsistent with an intention to pay (Curtis v. Sacramento, 70 Cal. 412; 11 Pac. 748; McCormick v. Brown, 36 Cal. ISO; 95 Am. Dec. 170); but a suggestion of a new mode of payment, as in work, not being made as a condition to the acknowl- edgment, does not have the effect of impairing the effect of the admission. Southern Pacific Co. v. Prosser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145. An agree- ment not to plead the statute of limitations comes equally within the statute (Wells Fargo & Co. v. Enright, 127 Cal. 669; 49 L. E. A. 647; 60 Pac. 439; State Loan etc. Co. V. Cochran, 130 Cal. 245; 62 Pac. 466, 600) ; and an agreement not to sue is suffi- cient consideration to support an agree- ment not to plead the statute. Smith v. Lawrence, 38 Cal. 24; 99 Am. Dec. 344; Belloc V. Davis, 38 Cal. 242; Frey v. Clifford, 44 Cal. 335; Wells Fargo & Co v. Enright, 127 Cal. 669; 49 L. R. A. 647; 60 Pac. 439; State Loan etc. Co. v. Cochran,. 130 Cal. 245; 62 Pac. 466, 600. An ac knowledgment of the indebtedness need not specify the amount. Curtis v. Sacra- mento, 70 Cal. 412; 11 Pac. 743. The report of a board of arbitration binds a corporation, the by-laws of which provide 209 ACKNOWLEDGMENT OR NEW PROMISE MUST BE IN WRITING. 360 for such a body; and it is not necessary that such report be signed by the corpora- tion, to take the debt out of the statute. Dearborn v. Grand Lodge, 138 Cal. 658; 72 Pac. 154. Where a party relies upon an acknowledgment or new promise to take the debt out of the bar of the statute, he must plead it. Smith v. Eichmond, 19 Cal. 476. An allegation that the defendant has acknowledged and has promised to pay is a sufficient allegation of the signature of the defendant. Porter v. Elam, 25 Cal. 291; 85 Am. Dec. 132. To whom made. When the acknowledg- ment is made by an agent of a corpora- tion, it does not bind him in his individual capacity (Pierce v. Merrill, 128 Cal. 473; 79 Am. St. Eep. 63; 61 Pac. 67); but an acknowledgment by an executrix, who has a personal interest in the estate of her deceased husband, and who gives her own note for an outlawed debt, is founded upon a sufficient consideration. Mull v. Van Trees, 50 Cal. 547. The acknowledgment or promise must be made to the creditor, and not to a stranger (Biddel v. Brizzo- lara, 56 Cal. 374; President and Board of Trustees v. Stephens, 11 Cal. App. 523; 105 Pac. 614; Kounthwaite v. Eounthwaite, 6 Cal. Unrep. 878; 68 Pac. 304); it may, however, be made to one known to be the agent or legal representative of the cred- itor (President and Board of Trustees v. Stephens, 11 Cal. App. 523; 105 Pac. 614); and where made to the administrator of the estate of a creditor, it is valid, and inures to the benefit of the estate (Farrell V. Palmer, 36 Cal. 187); and au iudorser of a note, to whom it is afterwards trans- ferred, is entitled to rely upon, and he has the benefit of, the acknowledgment or new promise made to the former holder. Smith V. Eichmond. 19 Cal. 476. Form of acknowledgment or promise. The statute does not prescribe any form in which an acknowledgment or promise shall be made; the imperative thing is, that it shall be "contained in some writing, signed by the party to be charged thereby," this expression clearly indicating that it is not essential that the acknowledgment or promise shall be formal; and it is sufficient if it shows that the writer regards or treats the indebtedness as subsisting (Coueannou V. Smith, 134 Cal. 14; 66 Pac. 40; Worth V. Worth, 155 Cal. 599; 102 Pac. 663); nor need it be made in express words, but it may be implied from any act or statement which necessarily and directly admits or presupposes the existence of and the obli- gation to pay a debt. Tuggle v. Minor, 76 Cal. 96; 18 Pac. 131. When made. It may be made either be- fore or after the bar of the statute has intervened; if before, the action is on the original contract; if after, it is on the new promise. President and Board of Trustees V. Stephens, 11 Cal. App. 523; 105 Pac, 1 Fair. — 14 614. The effect of the acknowledgment before the bar of the statute, is to continue the liability until the expiration of the statutory time thereafter. National Cycle Mfg. Co. v. San Diego Cycle Co., 9 Cal. App. Ill; 98 Pac. 64. A sufficient acknowledgment. The fol- lowing have been held sufficient: Letters of a liquidating partner, acknowledging payment of partnership claim, and promis- ing to remit (Osment v. McElrath, 68 Cal. 466; 58 Am. Eep. 17; 9 Pac. 731; Ashley V. Vischer, 24 Cal. 322; 85 Am. Dec. 65; Farrell v. Palmer, 36 Cal. 187); a letter written to a creditor by his debtor, after maturity of the debt, but before the inter- vening of the bar of the statute, referring specifically to the debt, and offering to pay in work (Southern Pacific Co. v. Pros- ser, 122 Cal. 413; 52 Pac. 836; 55 Pac. 145) ; the payment of interest upon the debt (Barron v. Kennedy, 17 Gal. 574); but a memorandum for the payment of the pur- chase price of land, signed by the cred- itor, but not by the debtor, although acted upon by him, is not sufficient, under the statute, net being signed by the party to be charged. Pena v. Vance, 21 Cal. 142. A release, signed by the mortgagee, of a part of the encumbered premises, which refers to the indebtedness, constitutes an acknowledgment, and stops the running of the statute. Chaffee v. Browne, 109 Cal. 211; 41 Pac. 1028. The acknowledgment, in a letter, of a mortgage indebtedness, is sufficient to take the ease out of the opera- tion of the statute. Worth v. Worth, 155 Cal. 599; 102 Pac. 663. Effect of request not to sue. By a re- quest for forbearance to sue, the debtor will be estopped to plead the statute. State Loan etc. Co. v. Cochran, 130 Cal. 245; 62 Pac. 466, 600. Part payment. The payment of a part of the debt or obligation, either of the principal or interest, is an acknowledgment thereof, and takes it out of the bar of the statute (Barron v. Kennedy, 17 Cal. 574); but such part payment must be evidenced by writing, complying with the require- ments of this section. Fairbanks v. Daw- son, 9 Cal. 89; Lord v. Morris, 18 Cal. 482; Peria v. Vance, 21 Cal. 142; McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754; Heinlin v. Castro, 22 Cal. 100. What is acknowledgment of ezisting liability. See noti' 40 Am. Kep. 160. Acknowledgment of debt made to stranger. See Tiote 57 Am. Rep. 334. Acknowledgment sufficient to take debt out of statute. See notes 62 Am. Dec. 101; 35 Am. Rep. 317; 36 Am. Rep. 197; 58 Am. Rep. 749; 102 Am. St. Rep. 752. Acknowledgment or new promise by one Joint debtor. See notes 10 Am. Dec. 695; 17 Ann. Cas. 176. Payment of dividend by assignee of dettor does not take debt out of statute of limitations. See note 32 Am. Rep. 401. Indorsement of payment on promissory note by holder as sufficient proof of part payment to stop §361 GENERAL PROVISIONS AS TO TIME OF COMMENCING ACTIONS. 210 running of statute of limitations. See note Ann. Cas. 1913A, 1223. Part payment by joint debtor as suspending running of statute of limitations to joint obligors not authorizing or ratifying such act. See note Ann. fas. 1912D, 1328. Payment on barred debt as reviving lien of barred mortgage given to secure debt. See note Ann. Cas. 1912B, 508. Written promise or acknowledgment relied on to take case out of statute of limitations as aided by other writings. See note 12 Ann. Cas. 811. Person to whom new promise must be made to remove bar of limitations. See notes 5 Ann. Cas. .811; 19 Ann. Cas. 103; 25 L. R. A. (N. S.) 805; 33 L. K. A. (N. S.) 262. Part payment in full satisfaction of debt as removing bar of statute of limitations as to part not paid. See note 14 Ann. Cas. 213. Giving check, bill or note as part payment or collateral security, as starting limitations run- ning anew. See notes 15 Ann. Cas. 332; 18 L. K. A. (X. S.) 223; 35 L. R. A. (N. S.) 97. Removal of bar of limitations against action ex delicto by new promise. See notes 11 Ann. Cas. 180; 13 L. R. A. (N. S. ) 912. Application of undirected payment to creditor ioldiug several barred claims as revival of any of them. See notes 14 Ann. Cas. 56; 13 L. R. A. {N. S.) 1141. Effect of new promise or part payment to re- vive judgment or judgment debt. See notes 9 Ann. Cas. 254; 8 L. K. A. (N. S.) 440. Application of proceeds of foreclosed security as part payment sufficient to revive barred note. See notes 14 Ann. Cas. 980; 14 L. R. A. (N. S.) 479. Revival of barred debt by application of gen- eral payment. See notes 14 L. R. A. 208; 13 L. R. A. (N. S.) 1141. New promise after bar. See note 53 L. R. A. 362. Promise to pay as soon as one can. See note 27 L. R. A. (N. S.) 300. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 343. 1. New promise to be in writing. At an early period after the passage of the English statute of limitations (21 James I, ch. 16), an impres- sion prevailed that the statute was not to be favored; and, accordingly, a very slight acknowl- edgment, proved by as slight testimony, was permitted to overcome the statute. Parsons' Mer- cantile Law, p. 233; Dunham v. Dodge, 10 Barb. (X. Y.) 568. But the modern cases upon this sub- ject have established the rule, that, to take a case out of the operation of the statutes, there must have been either an express promise to pay, or an admission of the debt, in terms so distinct as that a promise might reasonably be inferred therefrom. If, however, the admission was ac- companied by qualifying words, then it would not amount to a promise. Chitty on Contracts, pp. 712-714. The object of our statute was to change a rule of evidence, and now to require •written where verbal testimony was formerly sufficient. The matter to be proved is the ac- knowledgment or promise, and the only compe- tent evidence is a writing signed by the party to be charged. But whether the acknowledgment or promise will, when proved, be sufficient to take the case out of the operation of the act, is left to depend upon reason and authority, as it did before. 28 Eng. C. L. R. 82; Fairbanks v. Dawson, 9 Cal. 91. See also Barron v. Kennedy, 17 Cal. 574. commenting on Fairbanks v. Daw- son. 9 Cal. 89; and as to effect of part payments and proof of acknowledgment of debt, see these cases ccimniented on. and Fairbanks v. Dawson, supra, affirmed, in Peiia v. Vance, 21 Cal. 142. See further, Heinlin v. Castro, 22 Cal. 100; Por- ter v. Elam, 25 Cal. 291 ; 85 Am. Dec. 132. 2. Promise must be in writing. Where a memorandum-book was kept by plaintiff and a passbook by defendant, and these books were compared, the account found to be correct, and so acknowledged orally by the defendant, yet it did not take the case out of the statute as de- lined bv this section. Weatherwax v. Cosumnes Valley Mill Co., 17 Cal. 344. The party to be charged must sign his name to the writing. Pefia V. Vance. 21 Cal. 142. 3. Effect of statute of limitations. The stat- ute of limitations does not extinguish a debt nor raise a presumption of its payment. It only bars the remedy, and thus becomes a statute of repose. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. 4. New promise. Nature of action on cause that is barred by the statute. When a creditor sues after the statute has run upon the original contract, his cause of action is not founded upon the original contract, but on the new promise ; the moral obligation arising upon the original contract being a sufficient consideration for a new promise. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. 5. Nature of the contract resulting from mak- ing the statutory acknowledgment on new promise. Under the statute of limitations, there are two ultimate facts that may be proved in the mode therein prescribed: a continuing contract and a new contract. The statutory acknowledgment or promise, if made while the original contract is a subsisting liability, establishes a continuing con- tract; while, if made after the bar of the statute, a new contract is created. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. 6. Limitation of action on new promise to pay judgment. An action on a new promise to pay a judgment, so as to avoid the bar of the statute, must be brought within four years from the mak- ing of the new promise. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. 7. New promise necessary to support action on cause that is barred. A creditor cannot recover after the statute has run upon the original con- tract or obligation, without a new promise. Mc- Cormick V. Brown, 36 Cal. 180; 95 Am. Dec. 170. 8. Nature of new promise. The new promise may be either express or implied. An e.\press promise can only be established by producing the promise itself, in the form prescribed by this section : while an implied promise can only be established by the production, in like form, of the acknowledgment prescribed in this section. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. 9. Nature and scope of acknowledgment. An acknowledgment, within the statute, to support an implied promise, must be a direct, distinct, unqualified, and unconditional admission of the debt which the party is liable and willing to pay. Such acknowledgment cannot be deduced from an offer or promise to pay any part of the debt, or the whole debt in a particular manner, or at a specified time, or upon specified condi- tions. McCormick v. Brown, 36 Cal. 180; 95 Am Dec. 170. 10. Terms of express promise. An express promise, to be available to the creditor, must be either direct, certain, and unconditionally a speci- fied part of the debt, or a like offer, upon speci- fied conditions as to either time or manner, or both, to pay the whole or some part of the debt, or a direct conditional promise to pay the whole or a specified part of the debt; but in case of such offer or conditional promise, the creditor can only recover by showing an acceptance by him of the otTer as made, or a performance, on his part, of the prescribed conditions of the promise. McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170. 11. New promise generally. See Farrell v. Pal- mer, 36 C:il. 187; also Chabot v. Tucker, 39 Cal. 434, and authorities there cited. § 361. Limitation laws of other states, effect of. When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him 211 ACTIONS BEGUN NOT AFFECTED — SPECIAL PROCEEDING. §§362,363 in this state, except in favor of one who has been a citizen of this state, and wlio has held the cause of action from the time it accrued. secured by mortgage, bars a foreclosure of the mortgage in this state. Lilly-Brack- ett Co. V. Sonnemaun, 157 Cal. 192; 21 Ann. Cas. 1279; 106 Pac. 71.5. The law of a foreign jurisdiction, with reference to the statute of limitations, is presumed to be the same as the law of this state. Van Buskirk v. Kuhns, 164 Cal. 472; 129 Pac. 587. Pleading statute. The method of plead- ing this section is the same as that in pleading other sections of the statute of limitations. Allen v. Allen, 95 Cal. 184; 16 L. R. A. 646; 30 Pac. 213. Where the foreign land is a part of the statute of limitations, it is sufficiently pleaded by an allegation that the action is barred by the provisions of this section. Lilly- Brackett Co. v. Sonnemann, 157 Cal. 192; 21 Ann. Cas. 1279; 106 Pac. 715. Legislation « 361. Enacted March 11, 1872: based, according to the commissioners, on Stats. 1852, p. 161, which read, "When the cause of action has arisen in another state or a territory of the United States, or in a foreign country, and by the laws thereof an action thereon can- not there be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state" ; but it is in the language of Practice Act, § 532, except that the words "one who has been a citi- zen of this state, and" are substituted for "a citizen thereof." Effect of law of other states. This sec- tion refers to the primary and original jurisdiction in which the cause of action arose, independently of the whereabouts of the maker at the maturity thereof. McKee v. Dodd, 152 Cal. 637; 125 Am. St. fiep. 82; 14 L. R. A. (N. S.) 780; 93 Pac. 854. A citizen of this state may maintain an action on a judgment recovered in an- other state, of which he has held the cause of action from the time it accrued, al- though such an action is barred by the statute where rendered. Stewart v. Spauld- ing, 72 Cal. 264; 13 Pac. 661. The bar of an action, in a foreign state, on a note Whether demands barred by law of county where they originate are barred elsewhere. See note 22 Am. Dec. :'G2. CODE COMMISSIONERS' NOTE. Stats. 1852, p. 161; Nelson v. Nelson, 6 Cal. 430. § 362. Existing causes of action not affected. This title does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laAvs now in force are applicable to such actions and cases, and are repealed subject to the provisions of this section. Repeal of limitation. See ante, §§9, 18. constitutional. See note ante, § 5. NOTE. See also Legislation § 362. 1. Enacted March 11, 1873. 3. Amendment by Stats. 1901, p. 125; un- CODE COMMISSIONERS' §§ 5, 9, ante. §363. "Action" includes a special proceeding. The word "action" as used in this title is to be construed, whenever it is necessary so to do, as in- cluding a special proceeding of a civil nature. Legislation § 363. Enacted April 1, 1873. Laches. The defense of laches is differ- ent from the defense of the statute of lim- itations which applies here. Cahill v. Su- perior Court, 145 Cal. 42; 78 Pac. 467. Special proceedings. Whenever it is necessary to do so, the word "action," as used in this title, is to be construed as in- cluding a special proceeding of a civil nature: the application for a writ of man- date is a special proceeding of a civil nature (Barnes v. Gli.le, 117 Cal. 1; 59 Am. St. Rep. 153; 48 Pac. 804; Jones v. Board of Police Commissioners, 141 Cal. 96; 74 Pac. 696); and so is a probate pro- ceeding. Estate of Crosby, 55 Cal. 574. CODE COMMISSIONERS' NOTE. This section was added by act of April 1, 1872 [unpublished]. §367 PARTIES TO CIVIL ACTIONS. 212 TITLE III. PARTIES TO CIVIL ACTIONS. Parties holding title 'under a common- source, 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 the differ- ent parties to commercial paper or in- surance policies. Tenants in common, etc., may sever in- bringing or defending actions. Action, when not to abate by death, mar- riage, or other disability. Proceedings- in such case. Another person may be substituted for- the defendant. Conflicting claims, how- made. Intervention, when it takes place, and. how made. Associates may be sued by name of asso- ciation. Court, when to decide controversy or to- order other parties to be brought in. Actions against fire departments. § 3C7. Action to be in name of party in interest. § 381. § 368. Assignment of thing in action not to prejudice defense. S 382. § 369. Executor, trustee, etc., may sue without joining the persons beneficially inter- ested. § 383. § 370. Married woman as party to action. § 371. Wife may defend, when. § 372. Appearance of infant, etc., by guardian. § 384. May compromise. § 373. Guardian, how appointed. § 385. § 374. Unmarried female may sue for her own seduction. § 375. Father, etc., may sue for seduction of § 386. daughter, etc. § 376. Father, etc., may sue for injury or death of child. §387. § 377. When representatives may sue for death of one caused by the wrongful act of § 388. another. §378. Who may be joined as plaintiffs. . §389. § 379. W^ho may be joined as defendants. § 380. Parties defendant in an action to deter- § 390. mine conflicting claims to real property. § 367. Action to be in name of party in interest. Every action must be prosecuted in the name of the real party in interest, except as provided in section three hundred and sixty-nine of this code. of action against him prosecuted by the real person in interest. Giselman v. Starr,. 106 Cal. 651; 40 Pac. 8. Pleading statute. This objection is prop- erly taken by demurrer, on the ground that it does not state facts sufficient to- constitute a cause of action. People v^ Haggin, 57 Cal. 579. Defendant's objec- tion, that an action is not brought in the- name of the real party in interest, is with- out force, if he can urge any defenses that he could make against the real owner, and if a judgment satisfied by the defendant would protect him from future annoyance or loss. Giselman v. Starr, 106 Cal. 651; 40 Pac. 8; Simpson v. Miller, 7 Cal. App. 248; 94 Pac. 252. The right of a plain- tiff to maintain an action cannot be ques- tioned, unless the defendant pleads pay- ment or offset against the person claiming, to be the true party in interest. Gushee v. Leavitt, 5 Cal. 160; 63 Am. Dec. 116; Price- V. Dunlap, 5 Cal. 483. Who is real party in interest. The part\^ entitled to the fruits of the action is the- real party in interest (Summers v. Parish, 10 Cal. 347); as is also one for whom a contract is made. Western Development Co. V. Emery, 61 Cal. 611. The person for whose benefit a promise is made by a sec- ond person to a third party is the party beneficiallv interested, and may sue. Wor- mouth V. Hatch, 33 Cal. 121. Where there are distinct sums due distinct payees, each- payee is a proper party plaintiff, and can maintain an action in his individual name,, without the authority of his associates. Craig V. Fry, 68 Cal. 363; 9 Pac. 550. One of several parties jointly interested in a* Assignees. See post, § 368. Association, how may be sued. See post, § 388. Right to sue on contract made for one's bene- fit. See Civ. Code, § 1559. Parties plaintiff, generally. 1. All persons interested may be Joined. Post, §§ 378, 382. 2. If any refuse, they may be made defend- ants. Post, § 382. Legislation g 367. 1. Enacted March 11, 1873; based on Practice Act, § 4. which read: "Every action shall be prosecuted in the name of the real party in interest, except as otherwise pro- vided in this act." 2. Amended by Code AJidts. 1880, p. 63. 3. Amendment by Stats. 1901, p. 126; un- constitutional. See note ante, § 5. In the name of the real party in interest. Actions must be prosecuted in the name of the real party in interest, except as other- wise provided by law. Wiggins v. Mc- Donald, 18 Cal. 126; Lucas v. Pico, 55 Cal. 126; People v. Haggin, 57 Cal. 579; Walsh v. Soule, 66 Cal. 443; 6 Pac. 82; Craig v. Fry, 68 Cal. 363; 9 Pac. 550; Woodsum v. Coie, 69 Cal. 142; 10 Pac. 331; Monterey County V. Abbott, 77 Cal. 541; 18 Pac. 113; 20 Pac. 73; Giselman v. Starr, 106 Cal. 651; 40 Pac. 8. The general rule, however, is qualified by § 369, post. Tandv v. Waesch, 154 Cal. 108; 97 Pac. 69; Oliver V. Walsh, 6 Cal. 456. An action cannot be brought in the name of one other than the real party in interest, unless it is one of the exceptions to the rule provided by stat- ute. Dubbers v. Goux, 51 Cal. 153. A stranger to a transaction has no right to sue. Chenery v. Palmer, 5 Cal. 131. A plaintiff, who is not the real party in in- terest, is not entitled to recover. Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522. A defendant has a right to have the cause 213 ACTION TO BE IN NAME OF PARTY IN INTEREST. §367 -cla/im mav recover the whole amount due, if there is no plea of necessary parties ^plaintiff. Euss v. Tuttle, 158 Cal. 226; 110 -Pae. 813. Where an injunction bond is given to a plaintiff and others as obligees, Ihe plaintiff alone may sue, where the property on which the injunction operated was his sole property and the injury is to him alone. Summers v. Farish, 10 Cal. .347. An agent, in whose name a deed, absolute in form, is taken as security for the debt due the principal, is not a necessary party in an action to have the deed declared a mortgage, and foreclosed (Churchill v. Woodworth, 148 Cal. 669; 113 Am. St. Eep. 324; 84 Pac. 155); but the principal is the proper party to bring an action. Anglo- Calif ornian Bank v. Cerf, 147 Cal. 384; 81 Pac. 1077. Whether a judgment, if satis- fied, would protect the defendant from further loss or annoyance, is one of the tests, under this section, of the real party in interest. Simpson v. Miller, 7 Cal. App. 248; 94 Pac. 252. Actions affecting public. A private per- son has no right to use the name of the people in suing to obtain redress for private wrongs. People v. County Judge, 40 Cal. 479. Where there is a statute re- quiring that it shall be done, the people, on the application of the attorney-general, may bring an action to compel a board of supervisors to issue bonds for a specific | purpose (People v. Board of Supervisors,! 50 Cal. 561); and a private party, applying for such relief, must have an interest, of a nature distinguishable from that of the mass of the community. Linden v. Board of Supervisors, 45 Cal. 6. The name of the people cannot be used in a writ of mandamus. People v. Pacheco, 29 Cal. 210. The attorney-general, where the people are interested, may delegate his authority to sue (People v. Board of Supervisors, 36 Cal. 595) ; and where he has given such authority, and the state is not interested, and the relator only is interested, the at- torneA^-general has no power to control the suit, cr to withdraw his consent to the use of the name of the people. People v. North San Francisco Homestead etc. Ass'n, 38 Cal. 564. In certiorari, the people, as an interested party, must bring the action to determine the question of the constitu- tionality of an act establishing a court (Fraser v. Freelon, 53 Cal. 644); but a private party may sometimes maintain an action for the determination of a question in which the public are interested. Minor v. Kidder, 43 Cal. 229; In re Marks, 45 Cal. 199. Where a board of supervisors has imposed a license tax, and provided for its collection in the name of the peo- ple, the county cannot maintain an action in its own name to recover the tax (Mon- terey County V. Abbott, 77 Cal. 541; 18 Pae. 113; 20 Pac. 73); but an action on a recognizance in a criminal proceeding should be in the name of the county, al- though the recognizance runs in the name of the people (Mendocino County v. Lamar, 30 Cal. 627); and an action may be brought in the name of the county to recover money belonging to the general fund of the county. Solano County v. Neville, 27 Cal. 465. Although a bond is made in the name of the people, yet the party for whose benefit it was given may sue and recover thereon. Baker v. Bartol, 7 Cal. 551. An action on the official bond of a county treasurer, for failure to pay over moneys, which are alleged to belong to the county, is properly brought in the name of the county. Mendocino County v. Morris, 32 Cal. 145. The people are the proper par- ties plaintiff in an action to recover a de- linquent swamp-land assessment, although the law provides that assessments shall be collected in the same manner as are state and. county taxes (People v. Hagar, 52 Cal. 171), but a reclamation district may be a party plaintiff. People v. Haggin, 57 Cal. 579; Reclamation District v. Hagar, 66 Cal. 54; 4 Pac. 945; Reclamation Dis- trict V. Parvin, 67 Cal. 501; 8 Pae. 43. Actions by and against corporations. A corporation must sue and be sued in its corporate name. Curtiss v. Murry, 26 Cal. 633. A suit to recover the amount of a subscription to stock of a corporation to be organized, is properly brought by the corporation, as the real party in interest, although the subscription was payable to a trustee or assignors. Horseshoe Pier etc. Co. V. Sibley, 157 Cal. 442; 108 Pac. 308. Any action for a recovery on a contract to the subscription stock of the corpora- tion, must be brought in the name of the corporation, although the subscriptions are made between individuals. Western Devel- opment Co. V. Emery, 61 Cal. 611; Summers V. Farish, 10 Cal. 347; Wiggins v. McDon- ald, 18 Cal. 126. A cause of action to recover for misappropriation of funds by the directors, belongs to the corporation, and not to the stockholders. Cogswell v. Bull, 39 Cal. 320. Actions by assignees. The assignee of a judgment in favor of a ward, against his guardian, may maintain an action against the sureties on the guardian's bond. Heisen V. Smith, 138 Cal. 216; 94 Am. St. Rep. 39; 71 Pac. 180; Moses v. Thorne, 6 Cal. 87; Chilstrom v. Eppinger, 127 Cal. 326; 78 Am. St. Rep. 46; 5^9 Pac. 696. The assignee of a written agreement to pay money may maintain an action in his own name (Quan Wye v. Chin Lin Hee, 123 Cal. 185; 55 Pac. 783); as may also the assignee of a claim against a county (First National Bank v. Tyler, 21 Cal. App. 791; 132 Pac. 1053); and so also may the as- signee of a contract of guaranty to secure the payment of rent reserved in a lease (Reios V. Mardis, 18 Cal. App. 276; 122 Pac. 1091); and the assignee of a contract §367 PARTIES TO CIVIL ACTIONS, 214 may sue for a breach thereof. Moore v. Waddle, 34 Cal. 145. The assignee of a final judgment cannot maintain an action against the sureties upon the undertaking on appeal. Chilstrom v. Eppinger, 127 Cal. 326; 78 Am. St. Kep. 46; 59 Pac. 696; Moses V. Thorne, 6 Cal. 87; and see also Heisen v. Smith, 138 Cal. 216; 94 Am. St. Eep. 39; 71 Pac. 180. The verbal assign- ment of an account for labor does not make the assignee the proper party plain- tiff in an action to foreclose a lien there- for. Eitter v. Stevenson, 7 Cal. 388. The delivery of a note and mortgage, without any indorsement or written transfer, is not such a transfer as will deprive the mortgagee of the right to sue thereon in his own name, with the consent of the transferee; at most, it is onlj^ a pledge, and, as between the pledgor and the pledgee, the legal title remains in the former: the rule is, that, where the plain- tiff holds the legal title to the demand, he is the real party in interest. Consolidated Nat. Bank v. Hayes, 112 Cal. 75; 44 Pac. 469. The possession of a promissory note is prima facie evidence of ownership, and entitles the holder to sue. McCann v. Lewis, 9 Cal. 246. Action by trustees. Where a plaintiff, before the rendition of a judgment in ejectment, conveys the premises in contro- versy, an action on the undertaking on appeal, given for the sale and occupation of the premises, is properly brought in his name, as he is the trustee of an express trust for the benefit of his grantee (Walsh V. Soule, 66 Cal. 443; 6 Pac. 82); but the fact that the trustee of an express trust may maintain an action does not affect the right of the real party in interest to maintain it. Horseshoe Pier etc. Co. v. Sibley, 157 Cal. 442; 108 Pac. 308. Other actions. The widow of an intes- tate is the proper party to prosecute a suit to recover land. Page v. Garver, 146 Cal. 577; 80 Pac. 860. An action to recover money due an infant must be brought in the name of the infant, bv his guardian Fox v. Minor, 32 Cal. Ill; 91 Am. Dec. 566 A bankrupt cannot maintain a suit in his own name in relation to his own property not exempt, pending proceedings in bank ruptcy, after the appointment of a trus tee. Simpson v. Miller, 7 Cal. App. 248, 94 Pac. 252. In an action for trespass on real property, the proper party plaintiff is the person in actual possession. Lightner Min. Co. v. Lane, 161 Cal. 689; Ann. Cas. 1913C, 1093; 120 Pac. 771. The person having the possession of and the legal title to anything in an action has the right, as the real party in interest, to maintain the action (Woodsum v. Cole, 69 Cal. 142; 10 Pac. 331); and one who obtains title to a note and mortgage through a decree of distribution is entitled to sue thereon. West V. Mears, 17 Cal. App. 718; 121 Pac. 700. An action to condemn a particiilar riparian right is not an action to condemn absolutely all rights in and to a part of the flow of the stream, and persons having no right or interest in such riparian right, are not proper parties to the action. San Joaquin etc. Irrigation Co. v. Stevinson^ 164 Cal. 221; 128 Pac. 924. Action by wife. See note post, § 370. Who is real party in interest within statute defining parties by whom action must be brought. See note 64 L. R. A. 581. CODE COMMISSIONERS' NOTE. Stats. 1864, p. 29. 1. Assignee of a judgment. A judgment is not negotiable, like a bill of exchange by the law merchant, but is a mere chose in action, vesting an equitable right in the assignee thereof to tin; proceeds of it, with the right to the usual and legal means of collecting the amount due; and, between two bona fide purchasers of a judgment, the purchaser first in time is prior in right. Fore V. Manlove, 18 Cal. 436. 2. Answer, how framed. See 2 Abb. Forms, p. 31: Voorhees' N. Y. Code, p. 149, note. Wedderspoon v. Rogers, 32 Cal. 569. 3. Real party in interest. Action must be ia name of real party in interest. A stranger to a transaction cannot maintain a suit. Chenery v. Palmer, 5 Cal. 133. i. Real party in interest. The possession of a note, whether obtained before or after matu- rity, is prima facie evidence of ownership. The averment of a valuable consideration lor tlie transfer to the plaintiff is generally immaterial. The transfer, with or without value, confers upon the holder the right of action ; and a con- sideration rieed not be proved, unless a defense is interposed which would otherwise preclude a recovery. McCann v. Lewis, 9 Cal. 246 : James. V. Chalmers, 5 Sand. 52; 6 N. Y. 209. And ia such a case the objection that the plaintiff is not the owner of the note is unavailing. His. right to maintain action cannot be questioned, except the defendant pleads payment to, or off- set against, the party alleged to be the true owner. Price v. Dunlap, 5 Cal. 483; Gushee v. Leavilt, 5 Cal. 160; 63 Am. Dec. 116. 5. Real party in interest, whether the relief sought is legal or equitable. We have but one form of action for the enforcement of private rights, and, with certain exceptions, the code re- quires that every action shall be prosecuted in the name of the real party in interest. Cases of assignment are not included in these exceptions (see § 369); and in the form of the remedy no distinction exists between legal and equitable rights. In this respect the two classes of rights, are placed precisely upon the same footing, and must undergo the same remedial process for their enforcement. Wiggins v. McDonald. 18 Cal. 127. 6. Several obligees in a bond. A bond given to all the obligees V)y name, and using no words expressing a several obligation, yet necessarily creates a several liability, the design of it being to secure each and all of the obligees from dam- ages or injury. In such cases, however, under the common-law practice, it has been held that the suit was properly brought in the name of the- several obligees; and the question was said to be purely technical, to wit, With whom was the contract made? — the obligation being technically" to both to pay whatever damage might be sus- tained by either, though, when recovered, the money would go to the party who sustained the injury. Whatever the rule may be under the old system, we think that, under our system, the- rich* of action is in the p.irty sustaining the in- jury; for, on a recovery, the other party, if en- titled to receive the money at all, if judgment were had in the name of both, would hold it by right of, and as a trustee for, the other; and our Practice Act. for convenience, has given the right to sue to the party beneficially entitled to the fruits of the action. Summers v. Parish, 10 Cal. 347; Prader v. Puckett, 13 Cal. 591. 7. In a joint bond, each party may sue for his- several damages, notwithstanding the bond ift 215 ACTION TO BE IN NAME OF PARl'Y IN INTEREST. §367 made payable to the obligees jointly. Lally v. Wise, 28 Cal. 539. See also Browner v. Davis, 15 Cal. 11. 8. Party beneficially interested in damages may sue on bond given to officer, state, or corporation. Formerly, where a bond was given to an officer, state, or corporation, suit had to be broufiht in the name of the party holding the legal title, for the benefit of the persons interested; but our statute has introduced a new rule, and, by the provisions of the Practice Act, the suit must be prosecuted in the name of the real party in in- terest, i. e., the party beneficially interested in the damages. Baker v. Bartol, 7 Cal. 551; Lally V. Wise, 28 Cal. 540; M'ormouth v. Hatch, 33 Cal. 121. A plaintiff, being the real party in interest, has a right to sue upon a b^nid, though made payable to the people of the state. Baker V. Bartol, 7 Cal. 551. 9. Assignees. Where A owes B, and B owes C, and A and B, without consulting C, agree be- tween themselves that A shall pay C what A owes to B, it was held that an action could not be maintained by C against A, for want of priv- ity (McLaren v. Hutchinson, 18 Cal. 80) ; but this was questioned and declared open for fur- ther investigation in Lewis v. Covillaud, 21 Cal. 189; and it was also held, that where A, B, and C agre« among themselves that A shall be liable to C for a debt due from B to C, the assignee of C could sue in his own name for the debt due from A. McLaren v. Hutchinson, 22 Cal. 190, 83 Am. Dec. 59, and cases therein cited. 10. ActioH of ejectment. Legal title to be represented. In an action of ejectment, the plain- tiff suing for possession must have or represent the legal title: an equitable title is not sufficient. The action must be in the name of the party holding the legal title. Emeric v. Penniman, 26 Cal. 123: see also Estrada v. Murphy, 19 Cal. 272; Clark v. Lockwood, 21 Cal. 222. 11. Action by sheriff against party owing at- tachment debtor. Where an attachment was is- sued by the court of first instance against the property of a debtor, and the sheriff had exe- cuted the same, and was ordered to make the amount due the creditor out of the goods, chat- tels, and property of the debtor. Held: that the sheriff could not maintain an action in his own name to recover a sum owing to the attachment debtor bv a third person for goods sold and de- livered. Sublette v. Melhado. 1 Cal. 104. 12. Sheriff not responsible when goods re- leased from attachment on sufficient undertaking. An undertaking given to a sheriff to procure a release of goods attached is for the benefit of the plaintiff, notwithstanding it is in the name of the sheriff, and the plaintiff may sue on it; and if the sheriff takes a sufficient statutory under- taking, he has no further responsibility. Curiae V. Packard, 29 Cal. 194. 13. Party procuring patent for land, who has no right thereto. Who may maintain action against. If the United States confirm a grant of land, and issue a patent therefor, to a party who did not own the grant and had no right to the patent, the patentee can only hold the legal title in trust for the real parties in interest; and as to who are proper parties in an action for affirm- ative relief, see facts of case in Salmon v. Sy- monds, 30 Cal. 306, and authorities there cited. See also § 378. 14. A party plaintiff who was agent for defend- ants in the transaction complained of. The fact that the owner of a ship, lost while being towed to sea, was the agent for the owners of the steam-tug, does not relieve the latter from any of the obligations under which they contract with others. White v. Steam-tug Mary Ann, 6 Cal. 462 : 65 Am. Dec. 52?,. 15. Corporations as plaintiffs. The allegation that plaintiff is a corporation under the laws of the state is sufficient to establish the legal capa- city to sue. California Steam Nav. Co. v. Wright, 6 Cal. 258: 65 Am. Dec. 511. 16. Assignable instruments. A contract not to run boats on a certain line of travel, and on fail- ure to comply with such contract to pay fifteen thousand dollars, is an instrument in writing for the payment of money, and assignable by our laws. California Steam Nav. Co. v. Wright, 6 CaL 258; 65 Am. Dec. 511. 17. What may be assigned. Assignees. Ac- ceptance of orders. Funds in the hands, or to come into the hands, of the third person, are as- signable, and the drawees having given an order and received notice of ils acceptance are liable to the payees, without any other express promise to pay. Pope v. Iluth, 14 Cal. 407, and cases cited. 18. Acceptance of orders. Where an order is drawn for an amount due, it is a prima facie as- signment of the debt due. Even if it was only for part of a debt, no one could make the objec- tion but the defendants. McKwen v. Johnson. 7 Cal. 260; Whestley v. Strobe, 12 Cal. 97; 73 Am. Dec. 522. It would seem that a debtor may accept orders in favor of different persons, for different portions of the debt, and those accepted orders will bind all parties. McEwen v. Johnson, 7 Cal. 260. 19. Assignment of debt by parcels. And so debts due a party may by him be split up and assigned in parcels, and the debtor subjected to costs of more suits than was in the first place contemplated, if such debtor consents thereto. Marzion v. Pioche, 8 Cal. 536. 20. Agreement not to defend suit assignable. A agrees to pay a certain sum of money to B, if B will cease to defend a certain suit. Held: such an agreement is assignable, and gives the assignee a right to suit in his own name. Gray V. Garrison, 9 Cal. 325. 21. Assignable contract. A contract leasing a stallion for a certain time, and with a right re- served to have nine mares covered by the stud during the continuance of the lease, may be as- signed, and carries therewith all the benefits aris- ing out of the contract. But the assignee must give notice to the lessee of the assignment. Doll V. Anderson, 27 Cal. 248. 22. Contingent rights and interests are not or- dinarily assignable at law, but they are in equity. Assignments of such rights and interests, in be- ing, are upheld and enforced by courts of equity, And, more than this, these courts support and give effect to assignments of things which have no present actual existence, but rest in mere possibility; not as_a present positive transfer operates in prjBsenti, but as a present contract, to take effect and attach as soon as the thing comes in esse. Bibend v. Liverpool etc. Fire and Life Ins. Co., 30 Cal. 78: Pierce v. Robinson, 13 Cal. 121; 2 Storv's Eq., § 1040; Mitchell v. Win- slow, 2 Story, § 638; Fed. Cas. No. 9673. 23. Assignment of policy of Insurance to one having no interest in property insured. See Bi- bend V. Liverpool etc. Fire and Life Ins. Co., 30 Cal. 89; see also Civ. Code, §§2546-2557. 24. Assessment for street improvements assign- able. An assessment for street improvements against an owner of property assignable by the contractor. Cochran v. Collins, 29 Cal. 129. And a contract for improving a street may be as- signed. See Taylor v. Palmer, 31 CaL 248, and cases cited. 25. Suits by assignees. Where A was indebted to a company, and the company indebted to B, if all parties agreed that A should pay his debt to B it is an equitable assignment, and the as- signees can sue for the amount of the assignment. V\'iggins v. McDonald, 18 Cal. 126. An appro- priation of the fund is all that is necessary, and any act amounting to such an appropriation was sufficient to constitute an equitable assignment of the debt. Id. 26. Assignment of a judgment assignment of debt on which judgment was obtained. It mat- ters not if an assignment of a judgment is made, and the judgment is invalid for want of jurisdic- tion, for the assignment of a judgment so void is an assignment of the debt for which it was ob- tained. Brown v. Scott, 25 Cal. 196. 27. Cause of action assignable. Whether a cause of action is assignable depends mainly upon whether, in case of the death of the assignor, it would descend to his representatives. Znbri'jkie V. Smith, 13 N. Y. 322; 64 Am. Dec. 551; Me- Kee V. Judd, 12 N. Y. 622; 64 Am. Dec. 515; Dininny v Fay, 38 Barb. 18; Fried v. New York Central R. R. Co., 25 How. Pr. 285; People v. Tioga Common Pleas, 19 Wend. 73. §368 PARTIES TO CIVIL ACTIONS. 216 28. Suit by assignee of personal property. ■Where personal properly is wrongfully detained, the owner may assign his title thereto, and the assignee mav maintain an action therefor. Cass V Xew York etc. R. R. Co., 1 E. D. Smith, 522; McGinn v. Worden, 3 E. D. Smith, 355; Hall v. Robinson, 2 N. Y. 295; The Brig Sarah Ann, 2 Sumn. 211; Fed. Cas. No. 12342; 2 Hilliard on Torts, 275; Lazard v. Wheeler, 22 Cal. 142. 29. A right of action for the wrongful taking and conversion of personal property is assign- able, and, under the provisions of the code, the assignee can recover upon the same in his own name. McKee v. Judd. 12 N. Y. 622; 64 Am. Dec. 515; Hoyt v. Thompson, 5 N. Y. 347; see also Xorth v. Turner, 9 Serg. & R. 244; LazarJ V. Wheeler, 22 Cal. 142. SO. A damage caused by trespass on land may be assignable. More v. Mnssini, 32 Cal. 590. 31. Causes of action not assignable. A judg- ment in an action for a non-assignable tort be- comes a debt, but the recovery of judgment does not change the character of the debt bo as to make it assignable. Lawrence v. Martin, 22 Cal. 173. 32. Partner cannot assign claim against his firm. Assignee canaot maintain an action there- on. A partner who has a claim against the firm of whicli he is a member, and who cannot there- fore sue the firm at law, cannot confer upon his assignee a right to maintain such an action. If he could avoid the disability by assignment, it would defeat all the substantial reasons upon which the rule is founded. Bullard v. Kinney, 10 Cal. 63. 33. Vendor's lien not assignable. A vendor's lien cannot be assigned. Baum v. Grigsby, 21 Cal. 172; 81 Am. Dec. 153; affirmed in Lewis v. Covillaud, 21 Cal. 178; Williams v. Young, 21 Cal. 227. 34. A cause of action arising out of a tort Is not assignable. Oliver v. Walsh, 6 Cal. 456. 35. An assignment of an account by indorse- ment of the word "assigned," signed by the owner of the account, is sufficient. Ryan v. Maddux, 6 Cal. 247. 36. Plaintiff designated by name of copartner- ship firm. A complaint, which contains no other designation of the party plaintiff than the name of a partnership firm, is defective. Oilman t. Cosgrove, 22 Cal. 35G. 37. Set-off judgment not defeated as a set-off by assignment. Where, in the same action, two judgments were entered, one for the plaintiff for a certain sum, and one for the defendant for a less sum: Held: that defendant has a right to set off his judgment, pro tanto, against that of the plaintiff, and that this right could not be de- feated by any assignment by plaintiff of his judg- ment' before application for the set-off. Porter v. Liscom, 22 Cal. 430; 83 Am. Dec. 76. 38. Promise to third party. Where the obliga- tion with which it is sought to affect defendants personally arises out of an alleged promise given by them to W. and A. Elder, of whom they bought the land mortgaged by Pangburn to plaintiff, that they would pay a portion of the purchase-money, equal to the amount due or to grow due upon the note given by Pangburn to plaintiff, and se- cured by said mortgage, this is not a promise to pay the debt of another, nor to pay the Pang- burn note, but an original promise by them to the Elders to pay their own debt to them, by pay- ing a certain amount of money to plaintiff. If such promise was given, plaintiff could recover upon it as the party beneficially interested. Wor- mouth V. Hatch, 33 Cal. 121. 39. In ■whose name writ of mandate must be applied for. An application for the writ of man- date must be prosecuted in the name of the real party in interest, and if the name of the people is used and the people have no interest, and the relator alone is interested, the writ will be de- nied. People V. Pacheco, 29 Cal. 210. 40. Who are proper parties in an action for partition. Gates v. Salmon, 35 Cal. 576; 95 Am. Dec. 139. 41. Suit by assignee of a claim. An absolute assignment of a demand enables the assignee to sue for and recover the whole debt, even though by the assignments he acquired only a portion of the demand. Gradwohl v. Harris, 29 Cal. 150. 42. Intervention by part-owner of claim sued on. If the owner of a claim assigns it absolutely, retaining, however, an interest in it, he may inter- vene to protect his interests in an action brought by the assignee to collect the same; and if he does not intervene, he is bound by the judgment. Gradwohl v. Hatch, 29 Cal. 150. § 368. Assignment of thing in action not to prejudice defense. In the case of an assignment of a thing in action, the action by the assignee is with- out prejudice to any set-off, 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, before maturity. Assignment and survival of causes of action. See post, §§ 1582 et seq. Negotiable instruments, and rights of parties thereto. Civ. Code, §§ 3086 et seq., where the subject is discussed. Thing in action, defined. Civ. Code, § 953. Legislation § 368. Enacted March 11, 1872; based on Practice Act, § 5 (New York Code, § 112), which had (1) the words "shall be" in- stead of "is" before "without," (2) the word "shall" instead of "does" before "not apply," and (3) the word "due" instead of "maturity." Assignment of thing in action. The rule vi-hich prevailed in equity is adopted in this section (McCabe v. Grey, 20 Cal. 509), and it embraces every kind of thing in action, except negotiable paper, which paper alone is excepted from its operation. St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876; McKenney v. Ellsworth, 16.3 Cal. 326; 132 Pac. 75. "A thing in action" is a right to recover money or other per- sonal property by a judicial proceeding (Haskins v. Jordan, 123 Cal. 157; 55 Pac. 786); and "a thing in action not arising out of contract" means a thing in action not arising out of express contract. Oliver V. Walsh, 6 Cal. 456. The law does not require that the assignee for value of a thing in action shall take it subject to latent equities of third persons, of which he has no notice, but only that the assign- ment shall be subject to equities existing in favor of the debtor. First Nat. Bank V. Perris Irrigation Dist., 107 Cal. 55; 40 Pac. 45; Wright v. Levy, 12 Cal. 257. Equity will uphold assignments, not only of choses in action, but also of contingent interests and expectations, and of things which have no present actual existence, but rest in possibility; and an agreement for such interests will tako effect as such 217 ASSIGNMENT OF THING IN ACTION NOT TO PREJUDICE DEFENSE. § 368 assignment, when the subjects to which tney refer have ceased to rest in possibil- ity, and have ripened into reality. Pierce V. Kobinson, 13 Cal. 116. An unsatisfied judgment is a thing in action, within this section (Haskins v. Jordan, 123 Cal. 157; 55 Pac. 78(j); but an assignee thereof, after the reversal of the judgment, stands in the same position as the assignor. Reynolds v. Harris, 14 Cal. (567; 76 Am. Dee. 459. The rights of the assignee of a judgment are not affected by payments voluntarily made by the judgment debtor, notwithstanding the latter had no notice of the assignment. Brown v. Ayres, 33 Cal. 525; 91 Am. Dec. 655. The assignee of a judgment is simply the holder of an equity, with the right to use the assignor's name to enforce it, and he occupies the position of the assignor as to all the defenses which existed between the original parties. Wright v. Levy, 12 Cal. 257. Equity will also uphold an as- signment of the funds in the hands, or to come into the hands, of another (Pope v. Huth, 14 Cal. 403; Pierce v. Robinson, 13 Cal. 116; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423), and also the assignment of an insurance policy, where there is no transfer of the property. Bergson v. Build- ers' Insurance Co., 38 Cal. 541. The lease of a stallion, with a reservation, is assign- able, and the assignee is entitled to the benefit arising out of the contract. Doll v. Anderson, 27 Cal. 248. 8o also is an agree- ment to pay a certain sum of money to a defendant to sign a stipulation waiving a jury, and to withdraw a defense inter- 1 posed. Gray v. Garrison, 9 Cal. 325. An order drawn for the amount due the de- fendant is prima facie an assignment of the debt due. McEwen v. Johnson, 7 Cal. 258; Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522; Pope v. Huth, 14 Cal. 403. A part of a debt or demand cannot be as- signed, without the debtor's consent, so as to give the assignee a right of action, for the creditor cannot split up his cause of action (Marziou v. Pioche, 8 Cal. 522); but such an assignment is valid in equity, without the consent of the debtor. Grain v. Aldrich, 38 Cal. 514; 99 Am. Dee. 423. A partnership in an unsettled account is not assignable, where there is no balance struck, and no promise on the part of the individual members to pay their ascer- tained proportions of the amount. Bullard V. Kinney, 10 Cal. 60. A cause of action for tort is not assignable (Lawrence v. Martin, 22 Cal. 173), unless reduced to judgment; then the judgment becomes a debt, and is undoubtedly assignable. Oli- ver V. Walsh, 6 Cal. 456. Without prejudice to set-oflf or other defense. Set-off, as used in this section, is applicable to demands independent in their nature and origin; and counterclaim includes both recoupment and set-off, and is, strictly speaking, a pleading by which matters arising out of recoupment or set- off are averred. St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876. The as- signee takes for a valuable consideration an assignment of a judgment subject to the right of set-off existing between the parties at the time of the purchase. Hobbs V. Duff, 23 Cal. 596; Jones v. Chalfant, 55 Cal. 505. A judgment is not available as a set-off in an action of common-law jurisdiction, where the parties, in such case, are not the same; but in a court of equity it is otherwise; the court will look beyond the nominal parties to the suit, to the real parties in interest, and adjudi- cate the rights between them accordingly. Hobbs V. Duff, 23 Cal. 596. The assignee of an unsatisfied judgment takes it cum onere, subject to all rights of set-off affect- ing it that the judgment debtor had, or might acquire, before notice to him of the assignment. Haskins v. Jordan, 123 Cal. 157; 55 Pac. 786. Under this section, and § 1459 of the Civil Code, a defendant may avail himself of any set-off or defense ac- quired before notice of the assignment of any non-negotiable cause of action. Helmer v. Parsons, 18 Cal. App. 450; 123 Pac. 356. It is the duty of the proposed assignee of a non-negotiable cause of action to in- quire as to any defenses or set-offs against it. Helmer v. Parsons, 18 Cal. App. 450; 123 Pac. 356. Does not apply to negotiable paper. An assignee or a transferee, bona fide, for value, before maturity, of a promissory note or other negotiable instrument, takes the same free from all equities, counter- claims, and set-offs (Payne v. Benslej^ 8 Cal. 260; 68 Am. Dec. 318; Robinson v. Smith, 14 Cal. 94; Naglee v. Lyman, 14 ■Cal. 450); after maturity, a different rule prevails as to the first taker and all sub- sequent takers (Folsom v. Bartlett, 2 Cal. 163; Vinton v. Crowe, 4 Cal. 309; Fuller V. Hutchings, 10 Cal. 523; 70 Am. Dec. 746; Hayward v. Stearns, 39 Cal. 58); but whe.re the original assignee took the in- strument before maturity, bona fide, for value, discharged of all equities, counter- claims, and set-offs, all the subsequent in- dorsers will hold in like manner, even though they take after maturity. Bank of Sonoma County v. Gove, 63 Cal. 355 ; 49 Am. Rep. 92. Where a non-negotiable note is transferred by assignment after matu- rity, the assignee takes it subject to all equities and defenses which could have been urged against the original payee. San Jose Ranch Co. v. San .Jose Land etc. Co.. 132 Cal. 582; 64 Pac. 1097; St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876. Before maturity. An assignee, bona fide, for value, of a negotiable instrument, before maturity, takes the same free from all equitable defenses (Hays v, Plummer, 126 Cal. 107; 77 Am. St. Rep. 153; 58 Pac. 447); and an assignee of negotiable paper, §368 PARTIES TO CIVIL ACTIONS. 218 indorsed and delivered before maturity, is presumed to be the bona fide owner there- of, and all intendments are in favor of his right. Palmer v. Goodwin, 5 Cal. 458. A negotiable promissory note, not yet due, taken bona fide, as collateral security for a pre-existing debt, is taken free from any equities, defenses, or set-offs existing be- tween the original parties (Payne v, Bensley, 8 Cal. 260; 68 Am. Dec. 318); but where assigned after maturity, it is taken subject to equities. Graves v. Mono Lake etc. Mining Co., 81 Cal. 303; 22 Pac. 665. An assignee after maturity takes the same interest the assignor had, and the thing in action is subject to the same de- fenses, legal and equitable, as if it were in the hands of the assignor. Folsom v. Bartlett, 2 Cal. 163. A check, after dis- honor, is taken subject to all the defenses to which it would be subject in the hands of the original holder. Fuller v. Hutchings, 10 Cal. 523; 70 Am. Dec. 746. After maturity. A negotiable note, taken after maturity, is taken subject to all subsisting equities between the maker and the payee, but not such as subsisted between the maker and an intermediate holder. Warner v. Wilson, 4 Cal. 310. Non-negotiable instrument. Non-nego- tiable paper is subject to all set-offs, equi- ties, and defenses, legal and equitable, in the hands of the assignee, that existed in favor of the payor, against the payee, at the time of the assignment, or of notice thereof (St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876; Mitchell v. Hackett, 14 Cal. 661), and is also subject to all set- offs that mature after notice, and before suit brought. St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876. The answer must show that the counterclaim or set-off arose before the assignment, or before the defendant had notice thereof, or, on mo- tion, judgment for plaintiff must be en- tered on the pleadings. Benham v. Connor, 113 Cal. 168; 45 Pac. 258; and see Hemme V. Hays, 55 Cal. 337; Loveland v. Garner, 74 Cal 298; 15 Pac. 844; San Francisco v. Staude. 92 Cal. 560; 28 Pac. 778. Consideration. The delivery of a chose in action, for a valuable consideration, without a writing, is a sufficient transfer. Bibend v. Liverpool etc. Fire and Life Ins. Co., 30 Cal. 78. The presumption is, that a check was given upon a valid considera- tion; but this presumption may be re- butted. Fuller V. Hutchings, 10 Cal. 523; 70 Am. Dec. 746. A valid consideration is necessary to the validity of an assign- ment; a pre-existing debt is a valuable consideration. Payne v. Bensley, 8 Cal. 260; 68 Am. Dee. 318; Robinson v. Smith, 14 Cal. 94; Naglee v. Lyman, 14 Cal. 450; Frey v. Clifford, 44 Cal. 335; Davis v. Rus- sell, 52 Cal. 611; 28 Am. Rep. 647; Sackett V. .Johnson, 54 Cal. 107. A claim may be assigned either for a valuable considera- tion or for collection, and may be enforced by the assignee, subject to any defense or counterclaim against the assignor. Wat- kins V. Glas, 5 Cal. App. 68; 89 Pac. 840. Suflaciency of assignment. No particu- lar form of words is necessary to constitute an assignment. W^iggins v. McDonald, 18 Cal. 126. An indorsement of an account, "Assigned to A and B," signed by the owner of the account, is sufficient. Ryan V. Maddux, 6 Cal. 247. "Please hold to the order of Messrs. A & B, of C, (£500) five hundred pounds, sterling, of insurance, effected on cargo per bark D, and oblige," is an equitable assignment of the funds in the hands or to come into the hands of the drawees, to the payees. Pope v. Huth, 14 Cal. 403. "Please pay to the bearer of these lines two hundred and thirty-six dol- lars, and charge the same to my account," where given for a valuable consideration, and for the whole amount of the demand against the drawee, operates as an assign- ment of the debt or fund against which it was drawn. Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522. A non-negotiable contract, indorsed in blank, passes by de- livery, the same as a negotiable one, but subject to all equities and defenses exist- ing in favor of the maker at the time of indorsement. Lucas v. Pico, 55 Cal. 126. An order given by a creditor on his debtor is an equitable assignment of the claim, where it covers the full amount, without acceptance; and where for less than the full amount, and accepted, it is an assign- •ment pro tanto. McEwen v. Johnson, 7 Cal. 258; Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522; Pierce v. Robinson, 13 Cal. 116; Pope v. Huth, 14 Cal. 404; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423. "Pay the within, in case of loss, to C D," is a sufficient assignment of an insurance policy, where indorsed on the policy, which was delivered to the assignee. Bergson V. Builders' Ins. Co., 38 Cal. 541. A nego- tiable promissory note can be transferred only by indorsement and delivery; and such indorsement can be made only by writing the indorser's name on the back of the instrument if there is room, and if not, then on a paper so attached as in effect to become a part of it (Hays v. Plummer, 126 Cal. 107; 77 Am. St. Rep. 153; 58 Pac. 447); but the assignment must be delivered, to be valid; the mere signing of an assignment is insufficient to transfer title. Ritter v. Stevenson, 7 Cal. 388. An agreement to pay the debts of another, not assented to by the creditor, as part con- sideration, is not an assignment, pro tanto, of the debts to the creditor. McLaren v. Hutchinson, 18 Cal. 80. Notice of assignment. Notice of assign- ment of a claim, other than a negotiable instrument assigned before maturity, is necessary to protect the assignee. Doll v. Anderson, 27 Cal. 248; Bank of Stockton 219 ASSIGNMENT OF THING IN ACTION NOT TO PREJUDICE DEFENSE. §368 V. Jones, 65 Ca'i. 4;j7; 4 Pac. 418; Hogan V. Black, 66 Cal. 41; 4 Pac. 943; Renton v. Moiinier, 77 Cal. 449; 19 Pac. 820. Thus, in the case of a street assessment, settle- ment with the assignor and cancellation ■of the assessment, before notice of assign- ment, is a good defense to an action by the assignee (Hogan v. Black, 66 Cal. 41; 4 Pac. 943) ; and where a promissory note is assigned after maturity, payment to the •original payee, before notice of the assign^ ment, discharges the maker. Bank of Stockton V. Jones, 65 Cal. 437; 4 Pac. 418. The assignee of a bill of goods to arrive, part of the purchase price having been paid, and the balance to be paid upon ar- rival, on tendering such balance within a reasonable time after arrival, is entitled to possession of the goods, without pre- vious notice of assignment. Morgan v. Lowe, 5 Cal. 325; 63 Am. Dec. 132. The ■question of the giving and the sufficiency of the notice is for the jury. Renton v. Monnier, 77 Cal. 449; 19 Pac. 820. Notice to an agent, of facts arising from or con- nected with the subject-matter of the agency, is notice to the principal; and it is constructive notice to the principal, when the notice comes to the agent while lie is concerned for the principal, and in the course of the very transaction. Bierce V. Red Bluff Hotel Co., 31 Cal. 160. But an agent has only such authority as his principal actually or ostensibly confers ■upon him; and notice to the agent, of facts not arising from or connected with the sub- ject-matter of his agency, is not notice to the principal, unless actually communi- •cated to him. Renton v. Monnier, 77 Cal. 449; 19 Pac. 820. Action by an assignee. An assignee may ■commence an action in his own name, on contracts and things in action assigned (Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522; Wiggins v. McDonald, 18 Cal. 126; Gradwohl v. Harris, 29 Cal. 150; Grain ■V. Aldrich, 38 Cal. 514; 99 Am. Dec. 423); •and also on a non-negotiable instrument, indorsed (Gushee v. Leavitt, 5 Cal. 160; 63 Am. Dec. 116; Price v. Dunlap, 5 Cal. 483); and on a warehouse receipt, assigned in good faith and in the ordinary course of iDusiness. Davis v. Russell, 52 Cal. 611; 28 Am. Rep. 647. The assignee of a non- negotiable contract is the proper party plaintiff; for the holder of a non-negotia- lile contract is presumiitively the owner, and, as the real party in interest, is enti- tled to maintain an action thereon in his ■own name (Lucas v. Pico, 55 Cal. 126; Wheatley v. Strobe. 12 Cal. 92; 73 Am. Dec. 522; and see Dana v. San Francisco, 19 Cal. 486; People v. Gray, 23 Cal. 125; National Bank v. Herold, 74 Cal. 603; 5 Am. St. Rep. 476; 16 Pac. 507; Woodward -V. Brown, 119 Cal. 283; 63 Am. St. Rep. 108; 51 Pac. 2, 542), and he may also bring an action on an account held for collection, where he has the legal title, and interest to the extent of a fee or compen- sation. Curtis V. Sprague, 51 Cal. 239; Toby V. Oregon Pacific R. R. Co., 98 Cal. 490; 33 Pac. 550; Tuller v. Arnold, 98 Cal. 522; 33 Pac. 445; Greig v. Riordan, 99 Cal. 316; 33 Pac. 913. On a judgment assigned for value, or purciiascd at a sale under execution, the purchaser takes as assignee (Moses v. Thorne, 6 Cal. 87; Fore v. Man- love, 18 Cal. 436; Low v. Burrows, 12 Cal. 181); but it is otherwise as to an assign- ment after verdict, and before judgment, in an action for tort, which is unassign- able. Lawrence v. Martin, 22 Cal. 173. The assignment of a claim against a city, on a written contract for street improve- ments, is not a mere assignment, but trans- fers the right to collect, demand, and re- ceive all moneys due, even if recovered on quantum meruit. Wetmore v. San Fran- cisco, 44 Cal. 294. A cause of action based upon the breach of a covenant in a doeil, not running with the land, does not pass by a conveyance of the land. Lawrence v. Montgomery, 37 Cal. 183. The owner of personal property wrongfully detained may assign his title thereto, and the assignee may maintain an action therefor. Lazard V. Wheeler, 22 Cal. 139. A claim for dam- ages for trespass on land is assignable, and the assignee may maintain an action to recover same (More v. Massini, 32 Cal. 590), and an agreement to pay money to a party to an action, in consideration of his withdrawal of his defense is also assign- able (Gray v. Garrison, 9 Cal. 325), and a contract leasing the services of a stallion is assignable. Doll v. Anderson, 27 Cal. 248. An order upon a third person for the whole amount of a debt owing by such third person, operates as an assignment of the debt, although not accepted by the debtor. Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522; Pierce v. Robinson, 13 Cal. 116; Pope V. Huth. 14 Cal. 403; Thomas V. Rock Island etc. Mining Co., 54 Cal. 578. Where an order is for less than the whole amount of the claim, but is made with the knowledge and consent of the drawee, the assignee must sue alone for his portion. McEwen v. Johnson, 7 Cal. 258; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dee. 423; Thomas v. Rock Island etc. Mining Co., 54 Cal. 578; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423; Marziou v. Pioche, 8 Cal. 522. An assignee, holding in trust for an- other, may maintain an action in his own name. Grant v. Heverin, 77 Cal. 263; IS Pac. 647; 19 Pac. 493. An assignment by a trustee will make the assignee, with notice of the trust, a trustee, the same as his assignor, and he may maintain suit in his own name. Grant v. Heverin'. 77 Cal. 263; 18 Pac. 647; 19 Pac. 493. Where the assignment of a debt is absolute, the as- signee may recover the full amount there of, notwithstanding the fact that, by the §369 PARTIES TO CIVIL ACTIONS. 220* assignment, he acquired only a portion of the demand. Ginocchio v. Amador etc. Mining Co., 67 Cal. 493; 8 Pac. 29; Grad- wohl V. Harris, 29 Cal. 150; Grant v. Hev- erin, 77 Cal. 263; IS Pac. 647; 19 Pac. 493. In an action against an assignee, where the consideration passing from him is not equal to the amount of the paper, the re- covery is limited to the amount actually paid him. Coye v. Palmer, 16 Cal. 158. The assignee of a judgment cannot sue upon the appeal bond, without an assign- ment thereof. Moses v. Thorne, 6 Cal. 87. CODE COMMISSIONERS' NOTE. 1. Pur- chasers and assignees of judgments. A purchaser of a judgment is not bound to inquire into latent equities existing in the hands of third parties, and is not affected as to third parties by frauds, of which he had neither actual nor constructive notice. Wright v. Levy, 12 Cal. 257. The rule caveat emptor applies as to the right of third parties in the purchase of a judgment, as well as in the purchase of other personal property. Mit- chell V. Hocketf, 25 Cal. 544; 85 Am. Dec. 151. A purchaser of a judgment takes it subject to all set-offs existing at time of purchase. Hobbs v. Duff, 23 Cal. 596; Porter v. Liscom, 22 Cal. 430; 83 Am. Dec. 76; McCabe v. Grey, 20 Cal. 509; Fore V. Manlove, 18 Cal. 436 2. Payment by a garnishee. If the judgment creditor assigns the judgment, and the judgment debtor, without notice of the assignment, after- wards pays the same voluntarily to the sheriff, by reason of the service of garnishee process upon him, the rights of the assignee are not affected, and he may still enforce the judgment. Brown v. Ayres. 33 Cal. 525; 91 Am. Dec. 655. 3. Promissory notes assigned as collateral se- curity. A negotiable promissory note, not yet due, and taken bona fide as collateral security for a previous debt, is not subject to a defense existing at the date of the assignment between the original parties. Payne v. Benslev, 8 Cal. 260; 68 Am. Dec. 318; Naglee v. Lyman,' 14 Cal. 450; Robinson v. Smith, 14 Cal. 94. Where there is any change in the legal rights of the parlies in relation to the antecedent debt, the creditor tak- ing the collateral security is considered as a holder for value, and the paper not subject' to equities existing between the original parties. Naglee v. Lyman, 14 Cal. 454. But where A gave his note to B in order that B might raise money on it as collateral security, and B raised the money thereon, and then fook up the note from the- pledgees, it was held that B could not sue on the note, as it had answered all the purposes for which it was given; and an assignee of B, taking the note after maturity, and upon no new con- sideration, took it' subject to the same defense. Coghlin V. May, 17 Cal. 515. 4. Notes assigned and indorsed after maturity. An indorsee, after maturity, takes the same in- terest that the indorser had, and his claim is subject to the same defense. Folsom v. Bartlett, 2 Cal. 163. If a party takes a note after its maturity, he takes it subject to all subsisting equi- ties between the maker and the payee, but not subject to such as subsisted between the maker and any intermediate holder. Vinton v. Crowe, 4 Cal. 309. 5. Transfer of check after dishonor. As to all persons except a bona fide holder without notice, a check given for a gambling debt is void. If it' was presented to the bank, and payment refused, and then it was transferred, after dishonor, the assignee takes it subject to all the defenses to which it was subject in the hands of the first holder. Puller v. Hutchings, 10 Cal. 526; 70 Am. Dec. 746. 6. Assignment of judgment. The assignee of the judgment is only the holder of an equity, with the right to use the judgment and the name of the plaintiff to enforce it, and stands in the shoes of the assignor as to all defenses which existed against the judgment between the parties to it. It is like a note assigned after due. '\Vright V. Levy, 12 Cal. 257; Northam v. Gordon, 23 Cal. 255 ; Hobbs v. Duff, 23 Cal. 596. 7. What assignments equity upholds. Equity upholds assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no actual existence, but vest in possibility. See note to preceding section, and the cases there cited, of Pierce v. Robinson, 13 Cal. 123; Bibend v. Liverpool etc. Fire and Life Ins. Co., 30 Cal. 78; Pope v. Huth, 14 Cal. 403. 8. Assigned account. As to defense to as- signed account, see Duff v. Hobbs, 19 Cal. 646. 9. Fraudulent assignor. A fraudulent assignor cannot sue to compel a reassignment, etc. See- Gregory V. Haworth. 25 Cal. 653. 10. Notice of assignment. As to when notice of assignment is not necessary, see Morgan v. Lowe, 5 Cal. 325; 63 Am. Dec. 132. 11. Assignee of judgment. An assignee of a judgment and of the sheriff's certificate of sale thereunder, stands in the same position as his assignor when the judgment has been reversed, and the sale will be set aside, where no loss will occur to the assignee. Reynolds v. Harris, 14 Cal. 667; 76 Am. Dec. 459. § 369. Executor, trustee, etc., may sue without joining the persons bene- ficially interested. An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining- with him the persons for w^hose benefit the action is prosecuted. 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. Action by an executor or administrator. Actions by executors and administrators. 1. Jointly with heirs or devisees, for posses- sion of real estate or quieting title. Post, § 1452. 2. Alone. Post, §§ 1581-1583. 3. To set aside fraudulent deeds made by deceased. Post, § 1589. Legislation § 369. Enacted March 11. 1873; based on Practice Act, § 6 (New York Code, § 113), which, as amended by Stats. 1854, Red- ding ed. p. 59, Kerr ed. p. 84, read: "An exec- utor or administrator, or trustee of an express trust, or a person expressly authorized by stat- ute, may sue without joining with him tlie per- son or persons for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section, shall be construed to include a person, with whom, or in whose name, a contract is made for the benefit of an- other." An administrator maj^ sue in his own name, as trustee of an express trust (Estate of Callaghan, 119 Cal. 571; 39 L. E. A. 689; 51 Pac. 860), without joining the heirs or beneficiaries. Eobertson v. Burrell, 110 Cal. 568; 42 Pac. 1086. This is an excep- tion to the general rule laid down in § 367, ante. Tandy v. VVaesch, 154 Cal. 108; 97 Pac. 69. Where an insurance policy does- not designate any beneficiary, the admin- istrator may likewise sue for insurance on the life of the deceased (Winterhalter V. Workmen's etc. Ass'n, 75 Cal. 245; 17" Pac. .1); and, being entitled to the pes- 221 EXECUTORS, ETC., NEED NOT JOIN BENEFICIARIES. §369 session of the real estate of the deceased, he may maintain an action in ejectment (Curtis V. Herrick, 14 Cal. 117; 7:? Am. Dec. 632; Tescheniacher v. Thompson, 18 Cal. 11; 79 Am. Dec. 151), and no spe- cial authority of the probate court is necessary (Halleck v. Mixer, 16 Cal. 574), ^nd an action may be brought at any time before administration is had or decree of distribution is made. Curtis v. Sutter, 15 Cal. 259. Trustee of an express trust. This sec- tion is permissive only, and does not ex- ■clude an action in the name of the real party in interest. Anglo-Californian Bank V. Cerf, 147 Cal. 384; 81 Pac. 1077. The fact that the trustee can maintain a suit does not preclude the beneficiary from maintaining a like suit. Horseshoe Pier «tc. Co. V. Sibley, 157 Cal. 442; 108 Pac. 308. He may sue alone, but he is not bound to do so. Tyler v. Houghton, 25 Cal. 26; Cerf v. Ashley, 68 Cal. 419; 9 Pac. 658; Walker v. McCu'sker, 71 Cal. 594; 12 Pac. 723; Winterhalter v. Workmen's etc. Ass'n, 75 Cal. 245; 17 Pac. 1; Patchett v. Pacific Coast Ry. Co., 100 Cal. 505; 35 Pac. 73; Graham v. Franke, 4 Cal. Unrep. 899; 38 Pac. 455; Robertson v. Burrell, 110 Cal. 568; 42 Pac. 1086; Kellogg v. King, 114 Cal. 378; 55 Am. St. Eep. 74; 46 Pac. 166. Thus, a trustee, to whom a mortgage has been assigned as security for the debt of the mortgagee, may be joined with the mortgagee as a party plaintiff in an action to foreclose the mortgage; and if not originally so made, he may be brought in afterwards. Cerf v. Ashley, 68 Cal. 419; 9 Pac. 658. That the trustee would be bound to bring an action to prevent waste or trespass upon land, or ejectment to re- cover its possession in case of an ouster, does not admit of doubt; on the contrary, should he refuse to do so, his cestui que trust may bring an action to compel him to do so: such being the case, it is anom- alous to say that he cannot apply for other relief, if necessary, in his own name. Tyler v. Houghton, 25 Cal. 26. A trustee to whom a chose in action has been trans- ferred for collection is, in contemplation of law, so far the owner that he may sue on it in his own name. Toby v. Oresron Pacific R. R. Co., 98 Cal. 490; 33 Pac. 550. A person contracting to purchase land in fais own name, although acting for an- other, may, without joining his principal, sue on the contract. Tandv v. Waesch, 154 Cal. 108; 97 Pac. 69. The first clause of this section has no application where a suit is brought by trustees, which involves their relations with the beneficiaries, or the relations of the beneficiaries among themselves: it applies only to suits against strangers, which affect the trust property. Mitau v. Roddan, 149 Cal. 1; 6 L. R. A. (N. S.) 275; 84 Pac. 145. A person may be a trustee in a transaction wherein he is not acting in his own interest solely, but for others associated with him, and where the agreement was made in his own name for the benefit of himself and of such other persons. McCowen v. Pew, 147 Cal. 299; 81 Pac. 958. A trustee of an express trust is a person with whom or in whose name u contract is made for the benefit of another. Walter v. McCusker, 71 Cal. 594; 12 Pac. 723; People v. Stacy, 74 Cal. 373; 16 Pac. 192; Chin Kem You v. Ah Joan, 75 Cal. 124; 16 Pac. 705. Where one party is in possession of money, which, in equity and good conscience, he is bound to pay over, an action may be maintained therefor, and no privity is required, except that which results from one person having money of another, which he conscientiously has no right to retain. Kreutz v. Livingston, 15 Cal. 344. There need be no allegation of trusteeship, or proof of it at the trial. Corcoran v. Doll, 32 Cal. 82; Walsh v. Soule, 60 Cal. 443; 6 Pac. 82; Lewis v. Adams, 70 Cal. 403; 59 Am. Rep. 423; 11 Pac. 833; Walker v. McCusker, 71 Cal. 594; 12 Pac. 723. The principal may sue on a contract executed by an agent without dis- closing his principal, but he must show the agency, and the power of the agent to bind him. Ruiz v. Norton, 4 Cal. 355; 60 Am. Dec. 618; Thurn v. Alta Telegraph Co., 15 Cal. 472; Swift v. Swift, 46 Cal. 266. A contract, partly for the benefit of one, made in the name of another, makes the latter a trustee of an express trust. Graham v. Franke, 4 Cal. Unrep. 899; 38 Pac. 455. Where incorporators designate one of their number as the party to receive subscriptions to the capital stock, they constitute him a trustee of an express trust. West v. Crawford, 80 Cal. 19; 21 Pac. 1123; Winters v. Rush, 34 Cal. 136. The directors of an insane asylum may sue as trustees of an express trust (Watt v. Smith, 89 Cal. 602; 26 Pac. 1071), as may also one taking a note or a mortgage in his own name for the benefit of another (White v. Allatt, 87 Cal. 245; 25 Pac. 420), and also one coming into possession with notice of trust property. Lathrop v. Bamp- ton, 31 Cal. 17; 89 Am. Dec. 141. A party to whom an undertaking on appeal is given, and who transfers the subject- matter of the litigation, becomes the trus- tee of the purchaser. Walsh v. Soule, 66 Cal. 443; 6 Pac. 82. A priest of a Cali- fornia Mision, occupying a position anal- ogous to that of a sole corporation in England, may maintain an action in his own name to recover possession of Mision lands. Santillan v. Moses, 1 Cal. 92. A purchaser at an execution sale for the bene- fit of another, and taking possession in his own name, is trustee of an express trust (Walker v. McCusker, 71 Cal. 594; 12 Pac. 723); and the state is the trustee of an express trust, where a bond is executed in the name of the state for the benefit of 369 PARTIES TO CIVIL ACTIONS. 222 a county (People v. Stacy, 74 Cal. 373; 16 Pac. 192); but a naked agency does not make the agent the trustee of an express trust (Lineker v. Ayeshford, 1 Cal. 75; Swift V. Swift, 46 Cal. 266); nor is an attorney in fact the trustee of an express trust (Powell v. Eoss, 4 Cal. 197); but an agent, contracting in his own name for the benefit of his principal, the agency being known, may sue in his own name. Salmon V. Hoffman, 2 Cal. 138; 56 Am. Dec. 322; Ord V. McKee, 5 Cal. 515; Winters v. Rush, 34 Cal. 136. Where an agent makes an assignment without authority, the assignee cannot maintain an action, even though the assignment was subsequently ratified by the principal. Wittenbrock v. Bellmer, 57 Cal. 12. Party for whose benefit action is prose- cuted. A person for whose benefit a con- tract is made may sue alone as the real party in interest, although not a party to it (Summers v. Farish, 10 Cal. 347; Wig- gins V. McDonald, 18 Cal. 126; Lewis v. Covillaud, 21 Cal. 178; McLaren v. Hutch- inson, 22 Cal. 187; 83 Am. Dec. 59; Morgan V. Overman Silver Mining Co., 37 Cal. 534; Western Development Co. v. Emery, 61 Cal. 611; Sacramento Lumber Co. v. Wag- ner, 67 Cal. 293; 7 Pac. 705; Malone v. Crescent City Mill etc. Co., 77 Cal. 38; 18 Pac. 858; Tyler v. Mavre, 95 Cal. 160; 27 Pac. 160; 30 Pac. 196); but a party benefited incidentally by a contract, who is not a party to it, but for whose benefit it was not expressly made, cannot main- tain suit thereon in his own name. Chung Kee V. Davidson, 73 Cal. 522; 15 Pac. 100. Person expressly authorized by statute. The first clause of this section raises a pre- sumption against the authority of any officer to sue, unless specially authorized by statute, otherwise the officer must sue on the ground that he is a trustee of an express trust. Watt v. Smith, 89 Cal. 602; 26 Pac. 1071. CODE COMmSSIONERS' NOTE. Stats. 1854, p. 64. 1. An executor or administrator may sue in his own name as executor or administrator. Curtis v. Herrick, 14 Cal. 117: 73 Am. Dec. 632: Tesche- macher v. Thompson, 18 Cal. 11; 79 Am. Dec. 151; Halleck v. Mixer, 16 Cal. 579; Curtis v. Sutter, 15 Cal. 259; Corcoran v. Doll, 32 Cal. 82. 2. Dampges for death of decedent. A suit for damages for the death of decedent can be brought only by the administrator or executor. Kramer v. San Francisco etc. R. R. Co., 25 Cal. 435. 3. Legal title must be represented, to recover lands. But a person havinK the equitable title cannot sue to recover possession of lands. Such action must be in the name of the party holding the legal title: thus, where a prant of land was made to P., which was confirmed by decree of the board of land commissioners, from which an ap- peal was taken to the United States district court. Pending the appeal, P. died, leaving a will. An order was made in the United States court, on petition of the heirs of P.. and the executors of the estate, substituting the heirs in the proceed- ings in place of P., and the court then confirmed the land to the heirs, and it was surveyed, and the surveyor approved. Subsequently, E. waa appointed administrator with the will annexed. It was held that the legal title was in the heirs, and that the administrator could not maintain an action to recover possession of the same. Em- eric V. Penniman, 26 Cal. 122; Salmon v. Sy- monds, 30 Cal. 301. 4. Foreclosure of a mortgage upon real prop- erty. See Burton v. Lies, 21 Cal. 87. 5. The heir must not be joined with the admia- istrator, in an action to recover a debt due to the decedent. The debts vest in the adminis- trator, and not in the heir, for it is personalty, and not realty. The administrator has alone the right to maintain the action. Grattan v. Wig- gins, 23 Cal. IB. 6. Action against executors and administrators. It was held, the general right to sue an admin- istrator was taken away by statute, except in case of presentation and rejection of the account. Ellissen v. Halleck, 6 Cal. 386; Falkner v. Fol- som's Executors, 6 Cal. 412. 7. Administrator a proper party to all suits respecting property of decedent. The adminis- trator has possession of all the real and personal property of the decedent, and is therefore a proper party to any suit concerning it. Harwood v. Marye, 8 Cal. 580; Belloc v. Rogers, 9 Cal. 124. 8. Administrator cannot be sued on a claim until the same has been presented and rejected. The claimant must present his claim, properly verified, to the administrator, that the adminis- trator and the probate judge may determine whether they will allow or reject the claim. If the claimant does not thus present his claim, he can maintain no action thereon against the ad- ministrator. Hentsch v. Porter, 10 Cal. 559. 9. As to mortgages. Hens, etc. Their presen- tation, etc. See Belloc v. Rogers, 9 Cal. 123; Carr V. Caldwell, 10 Cal. 380; 70 Am. Dec. 740; Hentsch v. Porter, 10 Cal. 559. It was held in Fallon V. Butler, 21 Cal. 24, 81 Am. Dec. 140, that an action could be maintained against an ex- ecutor or administrator to foreclose a mortgage given by the decedent, although the debt secured had been presented to and allowed by the admin- istrator and probate judge, if the action is only to reach the mortgaged property, and subject it to sale, and have the proceeds applied to the pay- merit of the debt secured, and no judgment is asked against the general estate of the decedent; and the cases of Ellissen v. Halleck, and Falkner V. Folsom's Executors, were overruled. It waa further held, that the word "claim" did not em- brace mortgage liens, etc. But this was doubted, and it was held that the word "claim" was broad enough to include a mortgage, or any other lien. Ellis V. Polhemus, 27 Cal. 353. It may be stated, therefore, that an administrator or executor can- not be sued, unless the claimant present his claims for allowance, and that the rule applies equally to mortgages and other liens as it does to any other claims. See, generally, Ellis v. Polhemus, 27 Cal. 353; Willis v. Farley, 24 Cal. 491; Fal- lon v. Butler, 21 Cal. 24; 81 Am. Dec. 140; Ellis- sen V. Halleck, 6 Cal. 386; Falkner v. Folsom's Executors, 6 Cal. 412; Hentsch v. Porter. 10 Cal. 555; Carr v. Caldwell, 10 Cal. 380; 70 Am. Dec. 740; Belloc v. Rogers, 9 Cal. 123. 10. Administrator cannot be joined with sur- vivor on joint obligation. In actions upon joint and several obligations, the administrator cannot be joined with survivor. May v. Hanson, 6 Cal. 642: Humphreys v. Crane, 5 Cal. 173. 11. Trustees of express trust. See Kreutz v. Livingston, 15 Cal. 344, and cases cited therein. A person to whom a note is payable for the bene- fit of another is, under this section, a trustee of an express trust. Winters v. Rush, 34 Cal. 136. 12. Attorney in fact is not a trustee. One who is described in an instrument, whether parol or special, as the attorney in fact of another, does not hold the character of trustee, and is not a necessary party to represent the interest of the principal. Our statute requires every action to be prosecuted in the name of the real party in in- terest. Powell V. Ross, 4 Cal. 198. 13. Guardian is not trustee of express trust. A guardian appointed by the probate court, under 223 marrif:d woman as party to action. §370 the act which provides for the appointment and prescribes the duties of guardians, is not a trus- tee of an express trust, within the meaning of this section. Fox v. Minor, :!2 Cnl. llfi; 91 Am. Dec. 566. 14. Miscellaneous actions on bonds taken in name of the people. Bonds in the name of the people, for the l)enefit of others, should be prose- cuted in the name of the part.v in interest, al though it is made payable to the people of the state. Baker v. Bartol, 7 Cal. 551. § 370. Married woman as party to action. When a married woman is a party, her husband must be joined with her, except: 1. When the action concerns her separate propertj^ includino^ action for injury to her person, libel, slander, false imprisonment or malicious prosecu- tion, or her right or claim to the homestead property, she may sue alone. 2. When the action 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. Co., 63 Cal. 450; Baldwin v. Second Street Cable K. R. Co., 77 Cal. 390; 19 Pac. 644. In an action for the false imprisonment of the wife, although the recovery would be community property, the wife is a neces- sary party (Gomez v. Scan! an, 155 Cal. 528; 102 Pac. 12); and in an action for malicious prosecution, the wife must be joined with her husband as a party plain- tiff (Williams v. Casebeer, 126 Cal. 77; 58 Pac. 380; McFadden v. Santa Ana etc. Ey. Co., 87 Cal. 464; 11 L. R. A. 252; 25 Pac. 681) ; and in an action against the wife for personal injuries, the husband is a necessary party. Henley v. Wilson, 137 Cal. 273; 92 Am. St. Rep. 160; 58 L. R. A. 941; 70 Pac. 21. In an action sounding in tort to the wife, based on a contract, she is properly joined as plaintiff; thus, in an action against a steamer for a breach of contract to carry the wife to a certain port, the alleged breach consisting in carry- ing her to another port, causing her deten- tion there, and consequent illness and other injuries, she is a proper and necessary party. Warner v. Steamship Uncle Sam, 9 Cal. 697. The wife may, without join- ing her husband, unless objection is raised by special demurrer, maintain an action against a person who, by fraudulent repre- sentations concerning her husband brought about her separation from her husband, to recover damages resulting therefrom. Work V. Campbell, 164 Cal. 343; 128 Pac. 943. The objection that the plaintiff is a married woman, and that her husband should be joined with her, is, in effect, a plea of defect of parties plaintiff; such objection is waived if not raised by de- murrer, where the defect appears upon the- face of the complaint, or by answer, where it does not. Hayt v. Bentel, 164 Cal. 680; 130 Pac. 432. Action concerning separate property. In an action concerning her sejiarate estate, a married woman may sue either witliout her husband (Snyder v. Webb, 3 Cal. 83; Van Maren v. Johnson, 15 Cal. 308; Dun- can V. Duncan, 6 Cal. App. 404; 92 Pac. Contracts of married women, generally. See Civ. Code. § 158. Sole traders. Post, §§ 1811 et seq. Legislation § 370. 1. Enacted March 11, 1873; basea, except subd. 3, on Practice Act, § 7 (New York Code, § 114), as amended by Stats. 1867- 68, p. 550; subd. 3 being based on Stats. 1869- 70, p. 226, and when enacted in 1872, read, "3. When she is living separate and apart from her husband, she may sue or be sued alone." 2. Amended by Code Amdts. 1873-74, p. 293 ; this amendment differing from the present (19i3) as noted infra. 3. Amendment by Stats. 1901, p. 126; un- constitutional. See note ante, § 5. 4. Amended by Stats. 1913, p. 217, in subd. 1, adding "ineluding action for injury to her per- son, libel, slander, false imprisonment or mali- cious prosecution." Married woman a party, joinder of hus- band. The common-law rule required the husband to join the wife in all actions in which she was a party, plaintiff or tlefend- ant; but that rule is altered by this sec- tion, the provisions of which are permis- sive, and not compulsory, in their nature, and for that reason the husband may be joined with the wife as a party, even where she is permitted to sue or to be sued alone. Van Maren v. Johnson, 15 Cal. 308; Calderwood v. Pyser, 31 Cal. 333; Corcoran v. Doll, 32 Cal. 82; Snyder v. Webb, 3 Cal. 83; Marlow v. Barlew, 53 Cal. 456. The object of this section is to avoid the necessity of a married woman suing by prochein ami. Kashaw v. Kashaw, 3 Cal. 312. In an action concerning i^rop- erty belonging to a married woman as a sole trader, her husband need not be joined. Guttmann v. Seaunell, 7 Cal. 455. In an action for injuries to her person, be- fore the amendment of 1913, the wife could not sue alone (Tell v. Gibson, 66 Cal. 247; 5 Pac. 223; McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464; 11 L. R. A. 252; 25 Pac. 681); but the husband merely a formal party; the right of action vv^as the wife's (McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464; 11 L. R. A. 252; 25 Pac. 681; Neale v. Depot Railway Co., 94 Cal. 425; 29 Pac. 954); the husband joins as party plaintiff, only because the com- mon-law rule requiring him to do so is still in force. Matthew v. Central Pacific R. R. §370 PARTIES TO CIVIL ACTIONS. 224 310; Marlow v. Barlew, 53 Cal. 456), or jointly with him. Vau Maren v. Johnson, 15 Cal. 308. In an action for money, which, when recovered, will be the wife's separate property, subject to the management and ■jontrol of her husband, he may, but need not necessarily, be joined with her as plain- tiff (Van Maren v. Johnson, 15 Cal. 308); and in an action for the purchase-money of her separate property, where she alleges that she had never given her consent, either in writing or orally, that the money might be paid to her husband, although his non- joinder as a party plaintiff is not ground of demurrer, yet the fact of the payment of the money to him may constitute a de- fense. Kays"^ v. Phelan, 19 Cal. 128. The wife is the proper party plaintiff in an action to foreclose a mortgage, executed by her husband, on lands claimed by her (Kohner v. Ashenauer, 17 Cal. 578); the husband is not a necessary party defend- ant in an action against the wife, upon an express contract made by the wife, and the judgment will bind the wife's separate property only. Terry v. Superior Court, 110 Cal. 85; '42 Pac. 464. The wife may bring an action for converted goods, her separate estate without her husband being joined. Bondy v. American Transfer Co., 15 Cal. App. 746; 115 Pac. 965. A judg- ment against the wife alone, in a suit brought against her in her maiden name, to quiet title to property acquired in such name, is not void. Emerv v. Kipp, 154 Cal. 83; 129 Am. St. Rep. 141; 16 Ann. Cas. 792; 97 Pac. 17; 19 L. R. A. (N. S.) 983. The husband need not be joined in an action concerning property belonging to the wife as a sole trader (Guttmann v. Scannell, 7 Cal. 455) ; nor in an action brought by the wife to quiet title to her separate property, on which a homestead has been declared. Prey v. Stanlev, 110 Cal. 423; 42 Pac. 908. The fact that the validity of the homestead is involved does not affect the right of the wife to sue alone. MacLeod v. Moran, 11 Cal. App. 622; 105 Pac. 932. A tenant, under a lease of the homestead, executed by the hus- band, cannot hold adversely to either the husband or the wife (Mauldin v. Cox, 67 Cal. 387; 7 Pac. 804); but the statute of limitations may be pleaded against an action by the wife, where the facts estab- lish adverse possession. Wilson v. Wilson, 36 Cal. 447; 95 Am. Dec. 194; Kapp v. Griffith, 42 Cal. 408. The earnings of a wife for her labor belong to her husband, and he is the proper party to sue therefor, in the absence of an agreement between them making such proceeds her separate property. Moseley v. Heney, 66 Cal. 478; 6 Pac. 134. A right of action for personal injury is community property; and in an action to recover for such injury, be- fore the amendment of 1913, the hus- band was a necessary party, unless his wife was living separate and apart. Lamb v. Harbaugh, 105 Cal. 680; 39 Pac. 56. The wife cannot be sued alone in an action con- cerning her separate property; thus, in an action to foreclose a chattel mortgage on the separate property of the wife, the hus- band is a necessary party defendant. Mc- Donald V. Porsh, 136 Cal. 301; 68 Pac. 817. Action concerning homestead property. The husband is not a necessary party in an action to quiet title to the wife's sepa- rate property, on which a homestead has been declared; the wife may sue alone. Prey v. Stanley, 110 Cal. 423; 42 Pac. 908. The phrase, "or her right or claim to the homestead property," was not in the origi- nal Practice Act section before the amend- ment of 1867-78, and it was held that the wife could not sue alone to recover the homestead (Poole v. Gerrard, 6 Cal. 71; 65 Am. Dee. 481; Revalk v. Kraemer, 8 Cal. 66; 68 Am. Dec. 304; Cook v. Kliuk, 8 Cal. 347; Marks v. Marsh, 9 Cal. 96; Moss v. Warner, 10 Cal. 296; Gee v. Moore, 14 Cal. 472; Guiod v. Guiod, 14 Cal. 506; 76 Am. Dec. 440), as the husband alone had title to the homestead (Gee v. Moore, 14 Cal. 472; Bowman v. Norton, 16 Cal. 213; Him- melmann v. Schmidt, 23 Cal. 117; Brennan V. Wallace, 25 Cal. lOS; Brooks v. Hyde, 37 Cal. 366; Johnston v. Bush, 49 Cal. 198), and the homestead right could not be as- serted individually, both husband and wife being required to join (Cook v. Klink, 8 Cal. 347), and the homestead right could not then be determined, unless both hus- band and wife were before the court. Re- valk V. Kraemer, 8 Cal. 66; 68 Am. Dec. 304. But, since the amendment of 1867—68, the wife may sue or be sued alone, the hus- band not being a necessary party (Marlow V. Barlew, 53 Cal. 456; Hart v. Church, 126 Cal. 471; 77 Am. St. Rep. 195; 58 Pac. 910; 59 Pac. 296; Prey v. Stanley, 110 Cal. 423; 42 Pac. 90S); and an action to recover the homestead may be maintained by the wife in her own name, without her hus- band joining as a party plaintiff. Mauldin V. Cox, 67 Cal. 387; 7 Pac. 804. The com- plaint in such an action must show that the land sued for is covered by a valid declaration of homestead. Tappendorff v. Moranda, 134 Cal. 419; 66 Pac. 491. Where a homestead was claimed by the husband, in an action, in which he was the sole de- fendant, brought to foreclose a mortgage executed by him alone, after the marriage, the rights of neither husband nor wife can- be affected by the proceedings, the wife not being a party; and the proceedings, to be conclusive against either, must include both. Revalk v. Kraemer, 8 Cal. 66; 68 Am. Dec. 304; Van Reynegan v. Revalk, 8 Cal. 75; Cook v. Klink, 8 Cal. 347; Marks v. Marsh, 9 Cal. 96; Moss v. Warner, 10 Cal. 296. Action between husband and wife. In such an action the wife may sue alone, and* it is not necessary to introduce other par- 225 MARRIED WOMAN AS PARTY TO ACTION. §370 ties, and their introductiou caunot affert her rights. Kashaw v. Kashaw, 3 Cal. 312. But this section does not contemplate ac- tions in tort by one spouse against the other; it applies only to actions for the possession of property rights. Peters v. Peters, 156 Cal. 32; 23 L. R. A. (N. S.) (399; 103 Pae. 219. The wife may maintain a suit against her husband, on a promissory note executed by him to her before their marriage. Wilson v. Wilson, 3(3 Cal. 447; 95 Am. Dec. 194. Wife living separate and apart from her husband. Where the wife is living sepa- rate and a]>art from her husband, she may sue alone for damages for injury to her person (Andrews v. Runyon, 65 Cal. 629; 4 Pac. 669; Duncan v. Duncan, 6 Cal. App. 404; 92 Pac. 310; Baldwin v. Second Street Cable R. R. Co., 77 Cal. 390; 19 Pac. 644; Muller V. Hale, 138 Cal. 163; 71 Pac. 81); but this does not mean a mere temporary absence of the wife; there must be an abandonment on the part of either the wife or the husband, or a separation which was intended to be final. Tobin v. Galvin, 49 Cal. 34; Humphrey v. Pope, 122 Cal. 253; 54 Pae. 847. Where, however, a wife, who has deserted her husband, before the period has expired entitling her to a divorce, in good faith offers to return and resume the marital relations, to which the husband does not consent, she is entitled to sue alone. Marlow v. Barlew, 53 Cal. 456; Muller V. Hale, 138 Cal. 163; 71 Pac. 81. An action may be maintained by the wife for injuries sustained by the enticing away of her husband. Humphrey v. Pope, 122 Cal. 253; 54 Pac. 847. Adverse possession by the wife, as against the husband, who has deserted her, may be acquired; and as to the projjerty so acquired, she may sue or be sued alone. Union Oil Co. v. Stew- art, 158 Cal. 149; Ann. Cas. 1912A, 567; 110 Pac. 313. If a married woman, not living separate and apart from her hus- band, is sued by a third person for the alleged conversion of a fund, the plaintiff cannot recover where the husband is not joined as a party defendant. Taylor v. Darling, 19 Cal. App. 232; 125 Pac. 249. A married woman, deserted by her husband, may sue alone to recover damages for her personal injuries, although such damages, when recovered, are community property. Duncan v. Duncan, 6 Cal. App. 404; 92 Pac. 310. Action concerning community property. In a suit to recover money lent to the wife to complete the purchase of what afterwards becomes community property, though the title is taken in her name, she is not a proper party defendant (Althof V. Conheim, 38 Cal. 230; 99 Am. Dee. 363; Maelay v. Love, 25 Cal. 367; 85 Am. Dec. 133; Brown v. Orr, 29 Cal. 120; Smith v. Greer, 31 Cal. 476); and in an action to foreclose a mortgage on the community 1 Fair. — 15 j>roperty, the husband is a necessary party. MeComb v. Spangler, 71 Cal. 418; 12 Pac. 347. Judgments against married woman. See note, 55 Am. Dec. 599. CODE COMMISSIONERS' NOTE. Slats. 1868, p. o.>0. The third subdivision is taken from Stats. 1870, p. 226. 1. Construction of section. Since married women can sue or defend alone, they are respon- sible alone for costs, etc., of suit, if unsuccessful. Ihis section provides in what cases a married woman may sue and be sued, without imposing any conditions or bestowing any privileges. Thus, in the cases mentioned, she is put upon a com- mon level with all other parties to actions, no discrimination being made in her favor or against her. Thereafter the code proceeds, and, without any distinction as to persons, prescribes, in gen- eral terms, applicable to all alike, the' manner in which actions shall be prosecuted, and the na- ture and form of the judgments which shall be rendered, and the manner in which the same shall be e.\ocuted. The provisions in the code relat- ing to judgments do not declare that judgments may be rendered in favor of, but not against, mar- ried women; on the contrary, thev merely pro- vide, in general terms, when the plaintiff or defendant shall have judgment and e.\ecution, regardless of the fact whether they are male or female, married or unmarried. The provisions of the Practice Act", allowing a married woman to sue alone, is not merely the adoption of the old chancery rule, allowing her, in certain cases, to sue by her "next friend." It is something more, for it allows her to sue alone. The office which the prochein ami performed was to be re- sponsible for costs. The old form of suing by prochein ami is abolished, but the right of the opposite party to recover costs is unimpaired, an<', as a necessary consequence, resulting from dis- ))ensing with the prochein ami, the married woman has herself been charged willi the respon- sibility which previously attached to him; and there is no good reason why it should not be so. If she is to be regarded as a feme sole for any purpose connected with litigation, she ought to be so regarded for all. There is no justice in ac- cording to her all the advantages and benefits to be gained by an action, and at the same time ex- empting her from all risk and responsibility. If she is to be allowed the rights of a suitor, she must, in the absence of an express provision to the contrary, be held to take also the respon- sibilities of a suitor, for they ought not to be separated. A question somewhat analogous arose in Alderson v. Bell, 9 Cal. 321, where the court said: "In this state, the wife can appear in and defend an action separately from her husband. To enable her to do so, she must possess, as de- fendant, all the rights of a feme sole, and be able to make as binding admissions in writing, in the action, as other parties." The question has arisen in New York, from which state our system is borrowed, and has been there deter- mined in accordance with the views entertained by us. In Moncrief v. Ward, New York com- mon pleas (reported in note to Baldwin v. Kim- mel, 16 Abb. Pr. 364), ihis same question was involved, and it was held that an execution for costs against a married woman could be enforced against her separate estate, whether it contains a direction to that effect or not. Mr. Justice Brady said: "Having the right to sue, the power must be employed cum onere. The statute award- ing costs does not exempt a married woman, either as plaintiff or defendant, from the pay- ment of costs when unsuccessful. There is no just reason why she should be thus exempted. ilaving the status of a feme sole in the courts, if she fail in her action, it would be unjust to com- pel her adversary to resort to extraordinary modes to collect his costs. It cannot be that the legis- lature intended this. It is true that, until the amendment of the code (§ 274) in 1862, the legis lature did not, in express terms, provide that costs could be recovered against her, but such §§ 371, 372 PARTIES TO CIVIL ACTIONS. 226 was the effect of the statutes then in existence, as I interpret them. That amendment merely declared the necessary legal conclusion from the existing statutes; no class of suitors, as already suggested, having been excepted from them. The execution to compel the payment of such costs must be enforced against her separate estate, whether so directed or not. It cannot be em- ployed against the property of another person, per se." Leonard v. Townseiid. 26 Cal. 44ri. 2. Wife may choose whether she will sue or defend alone, or in connection with her husband. It has been held that this section is not obliga- tory upon the wife to sue or defend alone; it confers only a privilege which, in many instances, it may be important for her to assert, for the protection of her interests, and in the e.xercise uf which the fullest liberty should be accorded to her. Van Maren v. Johnson, 15 Cal. 311; Kays V. Phelan. 19 Cal. 128. 3. Suits concerning the homestead property. The original statute, 1851—52. did not contain the clause "or her right or claim to the home- stead property," and the phrase was added by the amendment of 1867-68, p. 550. Until after the passage of the amendment the court had held a wife could not sue alone to recover the home- stead. See Poole v. Gerrard, 6 Cal. 71: 65 Am. Dec. 481; Revalk v. Kraemer, 8 Cal. 66, 68 Am. Dec. 304; Cook v. Klink, 8 Cal. 347; and see Gee V. Moore, 14 Cal. 472, overruling these cases in some particulars, but not as to this point, it seems; see Guiod v. Guiod, 14 Cal. 507; 76 Am. Dec. 440; see also Moss v. Warner, 10 Cal. 296. And it was said that a wife had no right in the homestead, independent of the husband, which she could enforce against his consent, and that she could not maintain a suit for it in her own name alone. Guiod v. Guiod, 14 Cal. 506: 76 Am. Dec. 440. And in a suit against the hus- band for a foreclosure of a mortgage upon the homestead, it has been held that when the hus- band appears and defends alone, any decision the court could make in regard to the homestead could not affect the rights of the wife, she not being a party to the suit. And such is the nature of the title to the homestead, that the rights of the husband cannot be affected without affecting those of the wife also. If no binding decision can be made when one of them only is a party, then it is idle for the court to make any decision at all in such a case. Marks v. Marsh, 9 Cal. 97. § 371. Wife may defend, when. If the wife msiy defend for her own right, she may defend for his right also. Legislation § 371. Enacted March 11, 1872; based on Practice Act, § 8, which read, "If a husband and wife be sued together, the wife may defend for her own right." Defense liy wife to action against her- self and husband. A wife r-an appear in and defend an action separately from her husband (Alderson v. Bell, 9 Cal. 315); and where sued with her husband, she pleads a special defense, she may defend as if she were sued separately. Deuprez v. Deuprez, 5 Cal. 387. Where the wife is a necessary party to the full adjustment of the contro- versy, she should be allowed to intervene (Sargent v. Wilson, 5 Cal. 504), and to file a separate answer, where the action con- cerns the homestead property. Moss v. 4. Separate property. Snyder v. Webb, 3 Cal. 83. When the action concerns the wife's sepa- rate property, it has been held she may seek the aid of the court either with or without her hus- band. Van Maren v. Johnson, 15 Cal. 311: Kays V. Phelan, 19 Cal. 128; Calderwood v. Pyser, 31 Cal. 333: Corcoran v. Doll, 32 Cal. 82. 5. Foreclosure of mortgage on wife's separate property. In an action for the foreclosure of mortgage executed by the husband, if the wife alleges the land was her separate property by vir- tue of a previous conveyance from the husband to her, she may be made a defendant. Kohner V. Ashenauer, 17 Cal. 578. 6. Action between wife and husband. Kashaw V. Kashaw, 3 Cal. 312. 7. Foreclosure of mortgage executed by both husband and wife. If a wife executes a mort- gage with her husband, she may be made a party defendant along with her husband in an action to foreclose the same, without alleging her in- terest in the property mortgaged. Anthony v. Nye, 30 Cal. 401. 8. Action for damages for injury to the person of the wife. Husband and wife must be joined. Sheldon v. Steamship Uncle Sam. 18 Cal. 526; 79 Am. Dec. 193. 9. Partnership obligation contracted by wife and third parties previous to marriage. The hus- band of a married woman is properly joined with her as a defendant in an action upon a partner- ship obligation, contracted by the wife and a third person, as partners, previous to the mar- riage, and while she was a feme sole. Keller v. Hicks, 22 Cal. 457; 83 Am. Dec. 78. 10. When the wife lives apart from husband. The third subdivision is taken from the statutes of 1870, p. 226. 11. Sole trader. In a suit against a married woman, who is a sole trader, on a contract made by her, she must be sued alone. McKune v. Mc- Garvey, 6 Cal. 497. And an action may be main- tained by a married woman, who is a sole trader, in her own name, without joining her husband. Guttmann v. Scannell, 7 Cal. 455; see also Cam- den V. Mullen. 29 Cal. 564. 12. Damages to community property. In an action for damages to the community property, the husband must sue alone : the wife cannot be made a party. Sheldon v. Steamship Uncle Sam, 18 Cal. 526;" 79 Am. Dec. 193; Barrett v. Tewfcs- bury, 18 Cal. 334. a husband and wife be sued together, and if the husband neglect to defend, Warner, 10 Cal. 296. If a feme sole sub- sequently marries, her husband should be made defendant in a .supplemental plead- ing setting up the fact of the marriage. Van Maren v. Johnson, 15 Cal. 308. CODE COMMISSIONERS' NOTE. The words "and if the husband neglect," etc., are added to the original provision of § 8 of the Practice Act. 1. The wife can appear in and defend an ac- tion separately from her husband. To enable her to do so, she must possess, as defendant, all the rights of a feme sole, and be able to make as binding admissions in writing in the action as other parties. Alderson v. Bell, 9 Cal. 315. 2. The wife may defend for her own right, as well when sued jointly with her husband as if the trial were separate; her defense, if a separate one, could come in, in either case. See Deuprez V. Deuprez, 5 Cal. 388. § 372. Appearance of infant, etc., by g-iiardian. May compromise. When an infant, or an insane or incompetent 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 ease. A guardian ad litem may 227 APPEARANCE OF INFANT, ETC., BY GUARDIAN. §372 § 3- Appointment of guardian ad litem. See post, post, be appointed in any case, when it is deemed by the eourt in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding, not- withstanding he may have a general guardian and may have appeared by him. The general guardian or guardian ad litem so appearing for any in- fant, or insane or incompetent person in any suit shall have power to com- promise the same and to agree to the judgment to be entered therein for or against his ward, subject to the approval of the court in which such suit is pending. for him, is not for that reason void. Chikls V. Lanterman, 103 Cal. 387; 42 Am. St. Rep. 121; 37 Pac. 3S2; Emerie v. Alvarado, 64 Cal. ^529; 2 Pac. 418. Under this section and § 373, post, upon the application of a relative, where a plaintiff sues to annul his marriage on the ground of mental incom- petency at the time of the marriage, a guardian ad litem may be appointed for him, the evidence tending to show incom- petency. Dunphy v. Dunphy, 161 Cal. 380; Ann. Cas. 1913B, 1230; 38 L. E. A. (N. S.) 818; 119 Pac. 512. An allowance for minor children may be made in a probate pro- ceeding, on the petition of any person, or by the court of its own motion; it is imma- terial whether or not a guardian ad litem is appointed. Estate of Snowball, 156 Cal. 235; 104 Pac. 446. Incompetent person a party. An action must be brought against an incompetent person, not against his guardian: there is no obligation on the part of the latter to discharge the obligation (Justice v. Ott, 87 Cal. 530; 25 Pac. 691; Fox v. Minor, 32 Cal. Ill; 91 Am. Dec. 566); and the in- competent, being the aggrieved party, may appeal from an order binding the guardian. In re Moss, 120 Cal. 695; 53 Pac. 357. General guardian. An infant may ap- pear by his general guardian (Gronfier v. Puymirol, 19 Cal. 629; Smith v. McDonald, 42 Cal. 484; Emerie v. Alvarado, 64 Cal. 529; 2 Pac. 418; Western Lumber Co. v. Phillips, 94 Cal. 54; 29 Pac. 328); and his appearance is sufficient to give the court jurisdiction of an infant defendant. Rich- ardson V. Loupe, 80 Cal. 490; 22 Pac. 227; Western Lumber Co. v. Phillips, 94 Cal. 54; 29 Pac. 328. Guardian ad litem. Where the interest of the infant requires it, the court will appoint a guardian ad litem; but it cannot do so until the infant has been brought into court by summons. Gray v. Palmer, 9 Cal. 616; Johnson v. San Francisco Sav- ings Union, 63 Cal. 554; MeCloskey v. Sweeney, 66 Cal. 53; 4 Pac. 943. Service upon the general guardian of an infant under fourteen years of age is sufficient service upon the infant (Richardson v. Loupe, 80 Cal. 490; 22 Pac. 227); and the appearance of a general guardian is suffi- cient to give the court jurisdiction of the person of an infant defendant; the fact Guardian and ward, generally. See §§ 1747 et seq. ; Civ. Code, §§ 2.36 et seq. Insane or incompetent person. Civ. Code, §§ 36, 38-42. Guardian of. Post, S§ 1763-1766. Minors and persons of unsound mind, their rights and liabilities. Civ. Code, §§33 et seq. Legislation § 372. 1. Enacted March 11, 1873; based on Practice Act, § 9 (New York Code, § 115), which read: "When an infant is a party he shall appear by guardian, who may be ap- pointed by the court in which the action is prose- cuted, or by a judge thereof, or a county judge." When enacted in 1872, § 372 read: "When an infant is a party he must appear by his gen- eral guardian, if he has one; and if not, by a guardian who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge." 2. Amended by Code Amdts. 1873-74, p. 294, to read: "When an infant is a party, he must appear either by his general guardian, or by a guardian appointed by the court in which the action is prosecuted, or by a judge thereof. A guardian may be appointed in any case, when it is deemed by the court in which the action is prosecuted, or by a judge thereof, expedient to represent the infant in the action, notwithstand- ing he may have a general guardian, and may have appeared by him." 3. Amended by Code Amdts. 1S80, p. 63, and then contained the first two sentences of the present section. 4. Amended by Stats. 1913, p. 350, adding the final sentence. Where infant is a party. An infant, party to an action, must appear, prosecute, and defend by his general guardian, or guardian ad litem. Crawford v. Neal, 56 Cal. 321; Estate of Cahill, 74 Cal. 52; 15 Pac. 364; Childs v. Lanterman, 103 Cal. 387; 42 Am. St. Rep. 121; 37 Pac. 382. The reason for this is the supposed want of discretion in the infant, and his inability to bind himself, or to appoint an attorney to r.epresent him. Estate of Cahill, 74 Cal. 52; 15 Pac. 364. But a judgment is not absolutely void, where no guardian is ap- pointed; for the failure to appoint a guar- dian does not go to the jurisdiction of the court; it is merely an irregularitv. Estate of Cahill, 74 Cal. 52; 15 Pac. 364; Foley v. California Horseshoe Co., 115 Cal. 184; 56 Am. St. Rep. 87; 47 Pac. 42. There is a distinction to be observed, and with good reason, between an action brought by an infant and one taken in hostilitv to him. Estate of Cahill, 74 Cal. 52; 15' Pac. 364. The supreme court has held, however, that, notwithstanding the provisions of this sec- tion, a judgment against an infant, in a cause in which no guardian was appointed §373 PARTIES TO CIVIL ACTIONS. 228 that no guardian ad litem was appointed for him is immaterial. Western Lumber Co. V. Phillips, 94 Cal. 54; 29 Pac. 32S; and see Gronfier v. Puvmirol, 19 Cal. 629; Smith V. McDonald, 42 Cal. 4S4; Hill v. Den, 54 Cal. 6. Where infants become necessary parties during the pendency of partition proceedings, as the successors of a deceiased defendant, they need not be served with summons: they may be brought in on mo- tion, by order of the court. Emeric v. Al- varado'. 64 Cal. 529; 2 Pac. 418; Stuart v. Allen, 16 Cal. 473; 76 Am. Dee. 551. There is no provision for the time of appointment of a guardian ad litem. Stuart v. Allen, 16 Cal. 473; 76 Am. Dec. 551. Appointment and powers of guardian ad litem. See note 9 7 Am. St. Rep. 995. Right of parent or person in loco parentis to compromise child's cause of action. See note 17 Ann. Cas. 608. Necessity for appointment of guardian ad litem ■when infant defendant has general guardian. See note Ann. Cas. 1912D. 363. Guardian ad litem. See note 32 L. R. A. 683. Control of guardian ad litem over action. See note 16 L. R. A. 50 7. CODE COMMISSIONERS' NOTE. 1. Appear by general, not special, guardian. "The infant must appear by his general guardian, if he has one." Spear v. Ward, 20 Cal. 660. But it has been held, that, although the infant may have a general guardian, yet the court will appoint a euardian ad litem if the interests of the infant require it. Gronfier v. Puymirol, 19 Cal. 629. The words, "his general guardian, if he has one ; and if not, then by," etc., were not in the sec- tion when the above decision was rendered. 2. Guardian appointed by will may act before letters issue. If a guardian is appointed by the will, it is not necessary that any letters of guar- dianship should issue to authorize the guardian to act. The order of appointment, when made by the probate court, constitutes the authority of the guardian, and the will, in cases of testamentary appointment, that of guardians in other cases. Xorris v. Harris, 15 Ca'. 256. 3. When married women regarded as infants, when under age. It has been held that, in some instances, the disability of infancy attaches as well to married women under age as it does to other infants. See Magee v. Welsh, 18 Cal. 159. 4. Action in name of infant for money due him. In an action to recover money due to an infant, the action must be brought by the guardian in the name of ihe infant, and not in the name of the guardian. Fox v. Minor, 32 Cal. Ill; 91 Am. Dec. 566. 5. Guardian ad litem not appointed until in- fant is brought into court. The court has no right to appoint a guardian ad litem, until the infant is pronerly brought into court. Gray V. Palmer, 9 Cal. 638. 6. Guardian ad litem limited in authority. A guardian ad litem has only a special and limited authority, and cannot go beyond it. Where guar- dians ad litem were appointed to represent an in- fant in a suit for the partition of real property, they had no authority to give and gave no assent to a decree, nor for partition or division of a common estate, but for a foreclosure of all claim of the infants, and the quieting against Ihem of the plaintiff's title to the particular piece of land mentioned in the decree. The court might as well have entered a decree affecting their title of de- claring void their claim to any other property. The infants were not before the court for any such purpose, and the appjintment of the guar- dian being a special power exercised by the court, and giving only special and limited authority to the guardians, it would seem that their acts, so far as transcending this authority, would be void. Waterman v. Lawrence, 19 Cal. 217; 79 Am. Dec. 212. 7. Infant's day in court after lie attains his majority, etc. At common law when the heir was sued at law, upon a specialty obligation of the ancestor chargeable upon the inheritance, he might pray that "the parol demur" — that is to say, that the pleadings or proceedings be stayed until he should attain his majority. This privi- lege was based on feudal reasons, and was con- fined to heirs. It did not even extend to devisees. "Courts of equity did not, however, confine this snecies of protection to cases precisely similar to those in which the parol could demur at law: but by a kind of analog}' they adopted a second rule, by which, in cases of foreclosure and partition, and in all such cases in which the real estate of an infant was to be sold or conveyed under a de- cree of the court, and, consequently, the execu- tion of the conveyance was necessarily deferred, the infant had an opportunity, after attaining twenty-one, to show cause against the decree. For this purpose a provision was inserted in the decree." Joyce v. McAvoy, 31 Cal. 279, 89 Am. Dec. 172, and cases there cited. § 373. Guardian, how appointed. AYhen a guardian ad litem is appointed by the court, he must be appointed as follows : 1. "When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of a relative or friend of the infant. 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply wdthin ten days after the service of the summons, or if under that age. or if he neglect so to apply, then upon the application of a relative or friend of the infant, or of any other party to the action. 3. When an insane or incompetent person is a party to an action or pro- ceeding, upon the application of a relative or friend of such insane or in- competent person, or of any other party to the action or proceeding. Legislation g 373. 1. Enacted March 11, 1873; based on Practice Act, § 10 (Xew York Code, § 116), which read: "The guardian shall be ap- pointed as follows: 1. When the infant is plain- tiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of a relative or friend of ihe infant; 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the in- fant." When enacted in 1872 the introductory paragraph was changed to read, "When a guar- 229 SEDUCTION — UNMARRIED FEMALE OR PARENT MAY SUE. §§ 374, 375 dian is appointed by the court, he must be ap- pointed as follows," this bcins tho onlv change. 3. Amended by Code Amdts. 1880. p". 63. Appointment of guardian ad litem. The appointment of a guardian ad litem may be made ex parte. C^rawford v. Neal, 5(i Cal. 321; Emeric v. Alvarado, 64 Cal. 529; 2 Pac. 418; Granger v. Shorriff, 133 Cal. 416; 65 Pac. 873. No notice of the appli- cation is necessary. Granger v. SherriflP, 133 Cal. 416; 65 Pac. 873. It may be made ore tenus, in open court; but it is the better practice to file the petition, setting forth the facts necessary to confer juris- diction. Emeric v. Alvarado, 64 Cal. 529; 2 Pac. 418. The court has no jurisdiction to appoint a guardian ad litem for an in- fant until such infant has been served with summons. McCloskey v. Sweeney, 66 Cal. 53; 4 Pac. 943; Estate of Callaghan, 119 Cal. 571; 39 L. E. A. 689; 51 Pac. 860. Application for family allowance. A guardian ad litem may be ajipointed for the purpose of applying for a family allow- ance, in a probate proceeding. Estate of Snowball, 156 Cal. 235; 104 Pac. 446. Guardian ad litem for insane person. § 374. Unmarried female may sue for her own seduction. An unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor. tion of damages. Lanigan v. Neelv, 4 Cal. App. 760; 89 Pac. 441. "Seduction," defined. Marshall v. Tay- lor, 98 Cal. 55; 35 Am. St. Rep. 144; 32 Pac. 867. Application for appointment of a guardian for an insane person may be made ex parte. Boyd V. Dodson, 66 Cal. 360; 5 Pac. 617. No notice of the application is necessary. Emeric v. Alvarado, 64 Cal. 529; 2 Pac. 418. Guardian ad litem for incompetent. See note ante, § 372. Appointment of guardian ad litem, where infant has general guardian. Where the interest of the infant requires it, the court in which the cause of action is pending will appoint a guardian ad litem, even though the infant has a general guardian (Gronfier v. Puymirol, 19 Cal. 629); but the provisions of this section apply only to cases where there is no general guar- dian, or where the general guardian is in- terested adversely to the ward, or docs not act. Gronfier v. Puymirol, 19 Cal. 629. CODE COMMISSIONERS' NOTE. This section relates to the appointment of a guardian ad litem, where there is no general guardian. Spear v. Ward, 20 Cal. 659; Norris v. Harris, 15 Cal. 255; Gronfier v. Puymirol, 19 Cal. 629. Seethe cases referred to in note to the preceding sec- tion. Exemplary damages. See Civ. Code, § 3294. Damages for seduction. See Civ. Code, § 3339. Legislation § 374. Enacted March 11, 1873. Unmarried female may sue for her own seduction. The word "seduction," as used in this section, means the use of some in- fluence, promise, art, or means, upon the part of the male, by which he induces the female to surrender her chastity and virtue to his embraces. Marshall v. Tav- lor, 98 Cal. 55; 35 Am. St. Rep. 144; 32 Pac. 867; and see Morrell v. Morgan, 65 Cal. 575; 4 Pac. 580. When rape is shown, instead of seduction, it but aggravates the offense, and justifies augmented exemplary damages. Marshall v. Taylor, 98 Cal. 55; 35 Am. St. Rep. 144; 32 Pac. 867. In an action for breach of promise of marriage, the plaintiff may plead seduction, brought about by reason of the promise, in aggrava- In whom right of action for seduction vests. See note 4 Am. Dec. 403. Eight of woman to recover damages lor her own seduction. See notes 8 Ann. Cas. 1115; Ann. Cas. 19] 2B. 1062. Who is real party in interest by vhom action for seduction must be brought. See note 64 L. R. A. 622. CODE COMMISSIONERS' NOTE. This, and the succeeding section, are new. Heretofore the action could only be in the name of the parent, or one who stands in that relation, and is sup- ported by the fiction that he has suffered pecuni- ary injury by loss of service, etc. The object of these sections is to provide a remedy in favor of the party injured, and to make the law, in this respect, harmonious with the declaration of the code, "that all actions must be prosecuted in the i.ame of the real party," etc. § 375. Father, etc., may sue for seduction of daughter, etc. A father, or, in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daugrhter, and the guardian for the seduc- tion of the ward, though the daughter or vvard be not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service. Guardian ad litem. Ante, § 372. Appointment of. Ante, § 373. Legislation § 375. 1. Enacted March 11. 1873. 2. Amendment by Stats. 1901, p. 126; un- constitutional. See note ante, § 5. Accrual of father's right of action for daughter's seduction. See note 1 Ann. Cas. 3HS. Right of person standing in loco paicntis ta maintain civil action for seduction. Scd note Ann. Cas. 1912D, 299. §376 PARTIES TO CIVIL ACTIONS. 230 § 376. Father, etc., may sue for injury or death of child. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury 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 wrongful act or neglect of another. Such action may be maintained against the per- son causing the injury, or death, or if such person be employed by another person who is responsible for his conduct, also against such other person. Guardian and ward. Post, §§ 1768-1776; Civ. United Railroads, 159 Cal. 270; Ann. Cas. Code, §§236-258. Legislation § 376. 1. Enacted March 11, 1873, in the exact language of Practice Act, § 11, and then read: "A father, or, in case of his death or desertion of his family, the mother, may main- tain an action for the injury or death of a child, and a guardian for the injury or death of his ward." 3. Amended by Code Amdts. 1873-74, p. 294. 3. Amendment by Stats. 1901, p. 126; un- constitutional. See note ante, § 5. Action by father for injury or death of child. This section does not create a right of action, where none existed before, but merely designates the persons by whom an action, for the causes therein mentioned, which then e:;iisted, or might thereafter be created by statute, should be brought. Kramer v. San Francisco etc. R. R. Co., 25 Cal. 434. The anomalies of this section are evidence of careless legislation, and suggest caution in its construction and ap- plication. Bond V. United Railroads, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 366. The action provided for in this sec- tion is a new action, and not that which the deceased might have brought had he survived. Lange v. Schoettler, 115 Cal. 388; 47 Pac. 139. In an action for the death of a child, the parent may recover all ]iecuniary loss suffered. Bond v. United Railroads, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 366. It is left to the jury, in such cases, to say what they deem "just"; and if they have not made their estimate upon a wrong basis, nor acted under the influence of passion or prejudice, their judgment is final. Lange v. Schoettler, 115 Cal. 388; 47 Pac. 139; Skelton v. Pacific Lumber Co., 140 Cal. 507; 74 Pac. 13. There are no restrictions as to the amount of damages recoverable in an action for death caused by the defendant's negli- gence, except that the damages must be just, and not exceed the amount claimed. Bowen v. Sierra Lumber Co., 3 Cal. App. 312; 84 Pac. 1010. Measure of damages. The measure of damages is that ]»rescribed by this and the succeeding section (Bond v. United Railroads, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 366); neither of which sec- tions give redress or compensation for mental distress consequent upon the death of a child (Morgan v. Southern Pacific Co., 95 Cal. 510; 29 Am. St. Rep. 143; 17 L. R. A. 71; 30 Pac. 603); nor for the pain or anguish suffered by the child. Bond v. 1912C, 50; 113 Pac. 366. The damages recoverable by the father are limited to such losses as he sustains; the infant can recover such further damages as are per- sonal to himself (Durkee v. Central Pacific R. R. Co., 56 Cal. 388; 38 Am. Rep. 59; Lange v. Schoettler, 115 Cal. 388; 47 Pac. 13'9) ; but the father is not limited, in his recovery, to the actual pecuniary injury sustained by reason of the loss of the ser- vices of his child. Nehrbas v. Central Pacific R. R. Co., 62 Cal. 320; Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20; Cook V. Clay Street Hill R. R. Co., 60 Cal. 604. The proper elements to be con- sidered by the jury in awarding damages to parents in such cases are: 1. The loss of the child's services during minority; 2. The mental anguish and suffering of the parents; 3. The expenses for medical at- tendance; and 4. The funeral expenses. Karr v. Parks, 44 Cal. 46; Sykes v. Law- lor, 49 Cal. 236; Cleary v. City Railroad Co., 76 Cal. 240; 18 Pac. 269; and see Bond V. United Railroads, 159 Cal. 270, 276; Ann. Cas. 1912C, 50; 113 Pac. 366. The main element of the damages for the de- termination of the injury is the loss of the child's services. Cleary v. City Rail- road Co., 76 Cal. 240; 18 Pac. 269; Morgan V. Southern Pacific Co., 95 Cal. 510; 29 Am. St. Rep. 143; 17 L. R. A. 71; 30 Pac. 603. In the case of a mother or a wife, the jury have been allowed to consider the fact that they were deprived of the comfort, society, and protection of a son or a husband; but it has always been held that this was in strict accordance with the rule, that only the pecuniary value of the life to the relatives could be recovered, the probable comfort, society, and protection having a pecuniary value. Lange v. Schoettler, 115 Cal. 388; 47 Pac. 139. Recovery by infant. The infant may recover damages for such injuries as are personal to himself, such as physical and mental pain and suffering, disfigurement, etc., notwithstanding the recovery of dam- ages by his parent for the losses the latter sustains. Durkee v. Central Pacific R. R. Co., 56 Cal. 388; 38 Am. Rep. 59. Where the infant plaintiff was a female of two years, and the evidence showed that the deceased father was twenty-seven years old, with an expectancy of thirty-seven years, and that he earned forty dollars a month and board, a verdict of five thou- 231 REPRESENTATIVE OF HEIR MAY SUE FOR DEATH WHEN. §377 sand dollars was sustained as not excessive. Bowen v. Sierra Lumber Co., 3 Cal. App. 312; 84 Pac. lOlO. Measure of damages for injuries causing death. See note post, § 377. Who may sue for wrongful death. See note 12 Am. St. Rep. 869. Right of parent to recover for de.ith of illegiti- mate child. See note 10 Ann. Oas. 810. Right of parent to recover for death of adopted child. See note 15 Ann. Cas. 148. Parent's right of action at common law for loss of services of minor child whose death is caused by negligence. See note 18 Ij. K. A. (N. S.) 316. CODE COMMISSIONERS' NOTE. It was held that the eleventh section of the Practice' Act (whi(ih was in the same terras as this section), wliich provides that the father, or, in case of his death, or desertion of his family, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward, does not create a riRlit of action where none existed before, but merely designates the persons by whom an action, for the causes therein mentioned, which then existed, or might there- after be created by statute, should be brought; and at the time the Practice Act was passed, the death of a person constituted no cause of action; and the eleventh section of that act, so far as it designates the parties by whom an action for the death of a person may be brought, is repealed by (he act of 1862 (see next section), which pro- vides that "every such action shall be brought by and in the names of the personal representatives of such deceased person." Kramer v. San Fran- cisco etc. R. R. Co., 25 Cal. 435. §377. When representatives may sue for death of one caused by the wrongful act of another. When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the ease, may be just, Legi-slation § 377. 1, Enacted March 11, 1873, and then read: "When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may main- tain an action for damages against the person causing the death; or when the death of a per- son is caused by an injury received in falling through any opening or defective place in any sidewalk, street, alley, square, or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was, at the time of the injury, to have kept in repair such sidewalk or otlier place. In every such action the jury may give such dam- ages, pecuniary or exemplary, as, under all the circumstances of the case, may to them seem just." 2. Amended by Code Amdts. 1873-74, p. 294. 3. Amendment by Stats. 1901, p. 126; un- constitutional. See note ante, § 5. Action by heirs or personal representa- tives. The action may be brought either by the heirs of the deceased, or by his per- sonal representatives; and when an action is brought, and the court has obtained .ju- risdiction of it, that is the only action that is permitted, under this section. Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515; 18 Am. St. Rep. 248; 24 Pac. 303; Hartigan v. Southern Pacific Co., 86 Cal. 142; 24 Pac. 851. This section is general; but actions for injuries arising out of the relation of employer and employee are gov- erned by § 1970 of the Civil Code. Prit- chard v. Whitney Estate Co., 164 Cal. 564; 129 Pac. 989. The action under this sec- tion is intended for the compensation of the families of persons killed, not for the solacing of their wounded feelings. Simo- neau v. Pacific Electric Ey. Co.. 159 Cal. 494; 115 Pac. 320. The word "heirs," in this section, is used in the common-law sense: it includes all persons capable of inheriting from the deceased, without any reference to the distribution of his prop- erty under a statute. Redfield v. Oakland Consol. etc. Ry. Co., 110 Cal. 277; 42 Pac. 822, 1063; Lange v. Schoettler, 115 Cal. 388; 47 Pac. 139. The action being purely statutory, and the statute contemplating but one action and one recovery, where a child is unborn, and its existence in its mother's womb is unknown to the defend- ant when a judgment in favor of the widow or other heirs is given, an action cannot be maintained by the child after its birth. Daubert v. Western Meat Co., 139 Cal. 480; 96 Am. St. Rep. 154; 69 Pac. 297; 73 Pac. 244. A recovery in the action is a bar to a further recovery, in a subse- quent action, by another heir, of whose existence the defendant had no knowledge at the time of the first action. Salmon v. Rathjeus, 152 Cal. 290; 92 Pac. 733. The action must be brought for the benefit of all the heirs, or by all the heirs for their own benefit. Salmon v. Rathjens, 152 Cal. 290; 92 Pac. 733. The bringing of the action by the personal representatives of the deceased does not make the damages any part of the estate. Jones v. Leouardt, 10 Cal. App. 284; 101 Pac. 811. The words "personal representatives" mean the ad- ministrator or executor, and not the heir or next of kin. Munro v. Pacific Coast Dredg- ing etc. Co., 84 Cal. 515; 18 Am. St. Rep. 248; 24 Pac. 303; Burk v. Areata etc. R. R. Co., 125 Cal. 364; 73 Am. St. Rep. 52; 57 Pac. 1065. The administrator is simply made a statutory trustee to recover damages for the benefit of the heirs. Ruiz v. Santa Bar- bara Gas etc. Co., 164 Cal. 188; 128 Pac. 330. Where the complaint by an adminis- trator, in an action for death, does not show that there are heirs, it does not state a cause of action; the administrator can §377 PARTIES TO CIVIL ACTIONS. 232 bring only such an action as the statutory trustee for heirs, to recover damages which they have suffered; but where there are no heirs, there can be no recovery. Web- ster V. Norwegian Mining Co., 137 Cal. 399; 92 Am. St. Kep. 181; 70 Pa~c. 276; Jones v. Leonardt, 10 Cal. App. 284; 101 Pac. 811; Ruiz V. Santa Barbara Gas etc. Co., 164 Cal. 188; 128 Pac. 330. An amended com- plaint, curing the defect of the original in not alleging that there are heirs, does not state a new or different cause of action. Ruiz V. Santa Barbara Gas etc. Co., 164 Cal. 188; 128 Pac. 330. The damages re- covered by the administrator, in such an action, are not assets of the estate of the decedent, but go to the heirs and persons injured by the death. Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515; 18 Am. St. Rep. 248; 24 Pac. 303; Jones v. Leon- ardt, 10 Cal. App. 284; 101 Pac. 811. The heirs cannot recover, where the deceased was guilt}' of contributory negligence. Shade v. Bay Counties Power Co., 152 Cal. 10; 92 Pac. 62. All the heirs should join as plaintiffs in the action; and where one does not consent to be joined, he may be made a defendant. Salmon v. Rathjens, 152 Cal. 290; 92 Pac. 733. The surviving widow may be the sole heir of the decedent. Knott V. McGilvray, 124 Cal. 128; 56 Pac. 789; Daubert v. Western Meat Co., 139 Cal. 480; 96 Am. St. Rep. 154; 69 Pac. 297; 73 Pac. 244. In an action by a husband for the death of his wife, caused by the mal- practice of a physician, it is not necessary to allege expressly that he is her heir, where it is alleged she was his wife, at the time of her death. Groom v. Bangs, 153 Cal. 456; 96 Pac. 503. A special ad- ministrator may sue, when authorized by the order appointing him. Ruiz v. Santa Barbara Gas etc. Co., 164 Cal. 188; 128 Pac. 330. Action for death by wrongful act or neg- lect. An action for damages for death by negligence or wrongful act is purely statu- tory: no such right existed at common law. Burk V. Areata etc. R. R. Co., 125 Cal. 364; 73 Am. St. Rep. 52; 57 Pac. 1065; Daubert V. Western Meat Co., 139 Cal. 480; 96 Am. St. Rep. 154; 69 Pac. 297; 73 Pac. 244; Pritchard v. Whitney Estate Co., 164 Cal. 564; 129 Pac. 989. In order to entitle one to recover, two things must be shown: 1. The wrongful act or negligence of the de- fendant; 2. No want of ordinary care on the part of the decedent; the gravamen of the action is the negligence or wrongful act of the defendant; and there can be no recovery, where the negligence of the de- cedent contributed in any degree to the death, or to the injury resulting in the death. Gay v. Winter, .3^4 Cal. 153. Where a widow sues for damages for the death of her husband, caused by negligence, the social and domestic relations of the par- ties, and their kindly demeanor toward each other, are admissible to be shown, as parts of "all the circumstances of the ease." Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20; Cook v. Clay Street HillR. R. Co., 60 Cal. 604; McKeever v. Market Street R. R. Co., 59 Cal. 294; Nehr- bas V. Central Pacific R. R. Co., 62 Cal. 320; Wolford v. Lvon Gravel etc. Mining Co., 63 Cal. 483. "^The heirs may all be joined as plaintiffs; and the husband, as the heir of his deceased w'ife, may bring suit in his own name as an heir, and as the guardian ad litem of the minor heirs. Red- field V. Oakland Consol. etc. Ry. Co., 110 Cal. 277; 42 Pac. 822, 1063. Joint tort- feasors are liable jointly and severally, and they may be sued jointly in one action, or severally in separate actions. Grundel V. Union Iron Works, 127 Cal. 438; 78 Am. St. Rep. 75; 47 L. R. A. 467; 59 Pac. 826. If several persons are guilty in common of a tort, the injured party may, at his election, sue such tort-feasor either sepa- rately or together. Butler v. Ashworth, 110 Cal. 614; 43 Pac. 4, 386. Where work is being done with tools and materials directly over a thoroughfare, where people are constantly traveling, and have the un- doubted right to travel, the law demands the exercise of great care and precaution in the performance of the work, in order that the travelers may not be injured. Dixon v. Pluns, 98 Cal. 384; 35 Am. St. Rep. 180; 20 L. R. A. 698; 33 Pac. 268; Judson V. Giant Powder Co., 107 Cal. 549; 48 Am. St. Rep. 146; 29 L. R. A. 718; 40 Pac. 1020; Knott v. McGilvray, 124 Cal. 128; 56 Pac. 789. The mere fact that a child is drowned in a public bathing-house is not conclusive proof of negligence on the part of the proprietor. Flora v. Bimini Water Co., 161 Cal. 495; 119 Pac. 661. Damages recoverable. The damages re- coverable are for the injuries inflicted upon the plaintiff, not for those upon the dece- dent (Redfield v. Oakland Consol. etc. Ry. Co., 110 Cal. 277; 42 Pac. 822, 1063; Bond V. United Railroads, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 366; Pierce v. United Gas etc. Co., 161 Cal. 176; 118 Pac. 700); and the jury have power to assess such damages as, under all the circum- stances of the case, may be just (Beeson V. Green Mountain Gold Mining Co., 57 Cal. 20; McKeever v. Market Street R. R. Co., 59 Cal. 294; Cook v. Clav Street Hill R. R. Co., 60 Cal. 604; Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515; 18 Am. St. Rep. 248; 24 Pac. 303; Morgan V. Southern Pacific Co., 95 Cal. 510; 29 Am. St. Rep. 143; 17 L. R. A. 71; 30 Pac. 603); and if they have not made their estimate upon a wrong basis, and have not acted under the influence of passion and prejudice, their judgment is final. Lange v. Schoettler. 115 Cal. 388; 47 Pac. 139. The rule of damages stated in the^ last sentence of this section is the exclu- 233 DAMAGES RECOVERABLE FOR DEATH. §377 sive measure of damages iu any action for injuries causing death (Bond v. United Kailroads, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 3G6) ; and is a direct de- termination of the legislature that the policy adopted by other states in that re- gard shall not exist in this state. Kedfield V. Oakland Consol. etc. Kv. Co., 110 Cal. 277; 42 Pac. 822, 1063. The general lan- guage of the last clause of this section is used with reference to the fact that the damages allowed by the statute to be re- covered are usually prospective iu their nature, and necessarily based upon proba- bilities; therefore the estimate of such damages must necessarily call for the exer- cise of a very large discretion upon the part of the jury, who must keep iu view the fact that the measure thereof is what shall fairly seem to be the pecuniary in- jury or loss of the plaintiff. De Haven, J., concurring, in Morgan v. Southern Pacific Co., 95 Cal. 510; 29 Am. St. Kep. 143; 17 L, E. A. 71; 30 Pac. 603. The jury are not limited, in assessing damages, to the actual pecuniary injury sustained by the plaintiff" by reason of the loss of the ser- vices of the deceased. Nehrbas v. Central Pacific E. E. Co., 62 Cal. 320; Clearv v. €ity Eailroad Co., 76 Cal. 240; 18 Pac. 269; Skelton v. Pacific Lumber Co., 140 Cal. 507; 74 Pac. 13. If the amount of damages awarded is large, the court cannot, for that reason, say they are excessive. Aldrich v. Palmer, 24 Cal. 513; Morgan v. Southern Pacific Co., 95 Cal. 510; 29 Am. St. Eep. 143; 17 L. E. A. 71; 30 Pac. 603; Eedfield V. Oakland Consol. etc. Ey. Co., 110 Cal. 277; 42 Pac. 822, 1063; Skelton v. Pacific Lumber Co., 140 Cal. 507; 74 Pac. 13. Compensatory, and not exemplary or vin- dictive, damages may be allowed, and these must be confined to the pecuniary loss suffered, including comfort, society, etc., of the deceased. Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515; 18 Am. St. Eep. 248; 24 Pac. 303. Exemplary dam- ages cannot be allowed. Lange v. Schoett- ler, 115 Cal. 388; 47 Pac. 139. The stat- ute of 1862 expressly provided that the jury might give exemplary damages, and this provision was carried into the first edition of the code (Lange v. Schoettler, 115 Cal. 388; 47 Pac. 139; Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515; 18 Am. St. Eep. 248; 24 Pac. 303; Morgan v. Southern Pacific Co., 95 Cal. 510; 2^9 Am. St. Eep. 143; 17 L. E. A. 71; 30 Pac. 603; but damages cannot be recovered for grief, mental suffering, or sorrow. Munro v. Pa- cific Coast Dredging etc. Co., 84 Cal. 515; 18 Am. St. Eep. 248; 24 Pac. 303; Beeson V. Green Mountain Gold Mining Co., 57 Cal. 20. Evidence as to necessary medical attention is proper on the question of dam- ages: Simoneau v. Pacific Electric Ey., 159 Cal. 494; 115 Pac. 320; but in order to recover such charges for medical and hospital services rendered, they must have been paid. Salmon v. Eathjeus, 152 Cal. 290; 92 Pac. 733. In order that funeral expenses may be recovered, they must be pleaded as special damages. Gay v. Win- ter, 34 Cal. 153. In all actions for injuries causing death, the damages are limited to the pecuniary loss suffered, by the person or persons for whose benefit the right of action is given, from the death or injury of the victim. Bond v. United EailroaiLs, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 366. Pecuniary damages are limited to the jirobablS value of the life of the deceased to relatives. Morgan v. Southern Pacific Co., 95 Cal. 510; 29 Am. St. Eep. 143; 17 L. E. A. 71; 30 Pac. 603; Pepper v. South- ern Pacific Co., 105 Cal. 389; 38 Pac. 974; Lange v. Schoettler, 115 Cal. 388; 47 Pac. 139. The i^ecuniary interest of children in the lives of their parents does not neces- sarily end with their attaining majority; the jury must take into consideration and allow for the probable loss of any benefit of i)ecuuiary value which the children would probably receive from their parents at the age of majority. Eedfield v. Oak- land Consol. etc. Ey. Co., 110 Cal. 277; 42 Pac. 822, 1063; Valente v. Sierra Eailwav Co., 158 Cal. 412; 111 Pac. 95; Bond v. United Eailroads, 159 Cal. 270; Ann. Cas. 1912C, 50; 113 Pac. 366. Children have a right to demand from their father a com- fortable support and a reasonably good education until of sufficient age to main- tain themselves; and where the father, whilst able to perform this duty, loses his life through the negligence of another, it was the intention of the statute to compel the offending party to make fair and just compensation for the loss; to accomplish that end, a larger sum would be required for a numerous family than for one of but one or two persons; in like manner, if there is a surviving widow, who, if her husband were alive, would be entitled to support from him, appropriate to his cir- cumstances and standing in life, she would be entitled to be fairly and justly compen- sated for the loss, in this respect, which she suffered bv his death. Taylor v. West- ern Pacific E."^E. Co., 45 Cal. 323. In de- termining the amount of damages to the children, caused by the death of the parent, the jury may take into consideration the value of nurture and instruction, moral and physical and intellectual training, which a parent gives to children. Eedfield V. Oakland Consol. etc. Ey. Co., 110 Cal. 277; 42 Pac. 822, 1063. The proof of the value of the deceased as a wage-earner is not the only element of damages to be considered by the jury. Skelton v. Pacific Lumber Co., 140 Cal. 507; 74 Pac. 13. Evi- dence of the business and education of the decedent, and of his habits of sobriety and economy, are also admissible. Tavlor v. Western Pacific E. E. Co.. 45 Cal. 323. sy78 PARTIES TO CIVIL ACTIONS. 234 The theory of this section is, that those who are entitled to recover damages have a pecuniary interest in the life of the per- son killed,' and hence the amount of re- covery is limited to the value of that in- terest; but "pecuniary interest" does not mean a precise sum in money, measured and demonstrated by evidence. Ruppel v. United Eailroads, 1 Cal. App. 666; 82 Pac. 1073. A life annuity in favor of the de- ceased is not a measure of damages. Red- field v. Oakland Consol. etc. Ev. Co., 110 Cal. 277; 42 Pac. 822, 1063. If tfee facts are clear and undisputed, and no other in- ference than that of negligence can be drawn from them, the court may draw the inference, and grant a nonsuit, where the plaintiff is guilty of contributor^' negli- gence. Shade v. Bay Counties Power Co., 152 Cal. 10; 92 Pac. 62. If liability for an injury caused by blasting depends upon negligence, the person who has an inde- pendent contract for the blasting is liable for the negligence, and not the party who let the contract. Houghton v. Loma Prieta § 378. Who may be joined as plaintiffs. 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 this title, tion raised, though they do not have a joint interest adverse to the defendant, Lumber Co., 152 Cal. 500; 14 Ann. Gas. 1159; 14 L. R. A. (N. S.) 913; 93 Pac. 82. The plaintiff, in an action, in this state, to recover for an injury causing death in a foreign state, must allege and prove the law of such foreign state, giving a right of action for the death. Ryan v. North Alaska Salmon Co., 153 Cal. 438; 95 Pac. 862. The rule of damages is discussed in Durkee v. Central Pacific R. R. Co., 56 Cal. 388; 38 Am. Rep. 59; Bowen v. Sierra Lum- ber Co., 3 Cal. App. 312; 84 Pac. 1010. Elements and measure of damages for wrong- ful death. See note 12 Am. St. Rep. 37.5. Measure of damages recoverable by parent for death of minor child by wrongful act. See note Ann. Cas. 1912C, 58. CODE COICMISSIONERS' NOTE. This section is intended as a substitute for "An Act requir- ing compensation for causing death by wrongful act, neglect, or default." Stats. 1862, p. 447. The portion of that act relating to the time in which the action must be commenced is inserted in chapter III of the title relating to the lime in which civil actions must be commenced. See Kramer v. San Francisco etc. R. R. Co., 25 Cal. 435. Co-tenants. Post, § 381. Special partners. Civ. Code, § 2492. Other parties, bringing in. Post, § 389. Misjoinder and non-joinder of plaintiffs. Post, § 430. Legislation § 378. Enacted March 11, 1873; based on Practice Act, § 12 (New York Code, § 117), the only change being to substitute the word "title" for "act." Persons having interest, joined as plain- tiffs. All persons in interest as plaintiffs should be joined as such (Whitney v. Stark, 8 Cal. 514; 68 Am. Dec. 360; Gor- man V. Russell, 14 Cal. 531); but no one can be both plaintiff and defendant; a party cannot have a right of action against himself as debtor or tort-feasor: Brown V. Mann, 71 Cal. 192; 12 Pac. 51; Byrne V. Byrne, 94 Cal. 576; 29 Pac. 1115; 30 Pac. 196. A person interested both as plaintiff and defendant must be made de- fendant; but this rule is dispensed with, where it is impracticable or very incon- venient, as in cases of joint associations composed of numerous individuals. Gor- man v. Russell, 14 Cal. 531. Generally, several persons, who have a common inter- est in the subject-matter of the action, and the right to ask the same remedy against the defendant, may properly be joined as plaintiffs. People v. Morrill, 26 Cal. 336; Toomey v. Knobloch, 8 Cal. App. 585; 97 Pac. 529. Several parties, having one com- mon interest in the subject-matter of the action, may join as plaintiffs, although they claim under distinct titles and have different interests (Churchill v. Lauer, 84 Cal. 233; 24 Pac. 107); and several par- ties, all interested in the principal ques- may join as plaintiffs, particularly where such joinder will prevent a multiplicity of suits. People v. Morrill, 26 Cal. 336; Owen V. Frink, 24 Cal. 171. Several abut- ting property-owners, each with a distinct parcel of land, all watered successively by the same stream, may unite as plaintiffs in an action seeking the redress of a com- mon grievance. Daly v. Ruddell, 137 Cal. 671; 70 Pac. 784; Los Robles Water Co. V. Stoneman, 146 Cal. 203; 79 Pac. 880; Barham v. Hostetter, 67 Cal. 272; 7 Pac. 689; Foreman v. Boyle, 88 Cal. 290; 26 Pac. 94. Tenants in common may main- tain a joint action for the diversion of the waters of a ditch, such action being in the nature of an action for the abatement of a nuisance. Parke v. Kilham, 8 Cal. 77; 68 Am. Dec. 310; De Johnson v. Sepul- beda, 5 Cal. 149. In an action in trover, all parties in interest should be joined as plaintiffs, and failure so to join may be pleaded in abatement. Whitney v. Stark, 8 Cal. 514; 68 Am. Dec. 360. A trustee, to whom a mortgage has been transferred by the mortgagee to secure a debt, may be joined in an action to foreclose the mort- gage. Cerf V. Ashley, 68 Cal. 419; 9 Pac. 658. Parties holding distinct water rights, regulated by a contract, jointly exercised by all, are properly united as plaintiffs in an action for the enforcement of such con- tractual rights (Daly v. Ruddell, 137 Cal. 671; 70 Pac. 784; Los Roblos Water Co. V. Stoneman, 146 Cal. 203; 79 Pac. 880); but where several riparian owners of dis- 235 PERSONS HAVING INTEREST JOINED AS PLAINTIFFS. §378 tinct parcels of land, which are supplied with water from the same source, join in an action to jirevent the diversion of the waters, and also ask for damages sever- ally to plaintiffs, the cause of action for damages to each of the plaintiffs, being several and individual, cannot be joined with the cause of action for an injunction, which is common to them all. Barham v. Hostetter, 67 Cal. 272; 7 Pac. 689; Fore- man V. Boyle, 88 Cal. 290; 26 Pac. 94. An attorney in fact, not a trustee, is not a necessary party to a suit to represent his principal. Powell v. Ross, 4 Cal. 197. Where the plaintiff brings a suit upon a bill of lading, made to the plaintiff jointly with another, he has no separate cause of action. Mayo v. Stansburj^, 3 Cal. 465. Where a purchase is made on a joint con- tract of two, one cannot sue for damages sustained by himself alone. McGilvery v. Moorhead, 3 Cal. 267. Under a lease made jointly by two parties, to a third party, by the terms of which each of the lessors was to receive an equal jiortion of the rent, both lessors are properly joined as plain- tiffs, in an action to recover restitution and damages on a breach of the contract by the lessee. Treat v. Liddell, 10 Cal. 302. In an action to quiet title, brought by the vendor against his vendee, under a con- tract of sale, the right to purchase under which had not been forfeited at the time of the commencement of the action, a sub- sequent vendee, under another contract, is a necessary party to the complete deter- mination or settlement of the question. Birch V. Cooper, 136 Cal. 636; 69 Pac. 420. Where a party agreed to pay the debt of another, a suit cannot be maintained by either the person to whom the debt was owing, or his assignee, neither having been a party to the agreement, nor assented to it, nor sought to connect themselves with it, until the commencement of the action. McLaren v. Hutchinson, 18 Cal. SO. Where the defendant is indebted to another person, and he to the plaintiff, and all parties agree that the defendant shall pay his indebtedness to the plaintiff, there is an equitable assignment of the debt, and the plaintiff may maintain an action there- on against the defendant. Wiggins v. Mc- Donald, 18 Cal. 126. Where a business is destroyed by fire, through the negligence or wrongful act of the defendant, the owner of the building and the insuring company are properly joined as plaintiffs, although the owner alleges and seeks to recover special damages to his business by reason of such negligence or wrongful act, in which damage the insurer has no in- terest. Fairbanks v. San Francisco etc. Ry. Co., 115 Cal. 579; 47 Pac. 450; and see also People v. Morrill, 26 Cal. 336; Owen V. Frink, 24 Cal. 171. When a cit- izen has been injured through the failure of a state oflQcer to do his duty, the state is not a proper part}' in an action to re- cover damages for such injury. Nougues V. Douglass, 7 Cal. 65. Where the non- joinder does not appear on the face of the complaint, it may he taken advantage of, either by the answer, or by the apportion- ment of the damages at the trial. Whit- ney V. Stark, 8 Cal. 514; 68 Am. Dec. 360. Where there is no showing of the impair- ment of substantial rights, a judgment will not be reversed for multifariousness and misjoinder. Asevado v. Orr, 100 Cal. 293; 34 Pac. 777; Shade v. Sisson Mill etc. Co., 115 Cal. 357; 47 Pac. 135; Daly v. Ruddell, 137 Cal. 671; 70 Pac. 784. In an action to cancel liens for street-work, the owners in severalty of separate lots may be joined as plaintiffs, this section expressly author- izing the joinder of plaintiffs, in one ac- tion, to accomplish a common purpose. Toomey v. Knobloch, 8 Cal. App. 585; 97 Pac. 529. In an action for the specific performance of a contract to purchase, brought by one of two purchasers, the other having received his share, the court, in the absence of a demurrer for non- joinder, may grant a decree in favor of the plaintiff alone. Stevens v. Los Angeles Dock etc. Co., 20 Cal. App. 743; 130 Pac. 197. CODE COMMISSIONERS' NOTE. 1. "Having an interest in the subject of the action." See § .367, ante, and notes. In an action of trover, all parties in interest should be joined. AVhitney V. Stark, 8 Cal. .514; 68 Am. Dec. 360. 2. "Except when otherwise provided in this title." See the following notes. 3. "Assignees of things in action." See § 368, ante, and notes. 4. Executors, administrators, and trustees. See § 369, ante, and notes. 5. Married women. See §§ 370, 371, ante, and notes. 6. For infants and guardian. See § 372, ante, and notes. 7. Actions by parents in certain cases. See §§ 37.T. 376, ante, and notes. 8. Actions by heirs and personal representatives for death of person by wrongful act. See preced- ing section. 9. When one or more parties may sue or de- fend for all the parties in interest. See § 382, post. 10. Actions to quiet title. See § 738, post. 11. Parties having an interest. Who are proper parties to equity actions. Who are the proper and necessary parties to a suit in equity, is a sub- ject of great practical importance, and oftentimes of no inconsiderable difficulty. It is the constant aim of a court of equity to do complete justice, by deciding upon and settling the rigrhts of all parties interested in the subject of the suit, so as to make the performance of the decree of the court perfectly safe to those compelled to obey it, and to prevent further litigation. For this purpose, all persons materially interested, either legally or beneficially, in the subject-matter of the suit, ought generally to be made parties thereto, either as plaintiffs or defendants, so that there may be a complete decree, which shall bind them all. Mitford's Pleading, 6th Am. ed., p. 189; 1 Dan- iell's Chancery PI. & Pr., p. 40; Storv's Eq. PI., § 72 ; People v. Morrill, 26 Cal. 360, 361. The rule, as stated and illustrated in King v. Berry's Exec- utors, 3 N. J. Eq. 52, is, that all persons legally or beneficially interested in the subject-matter and result of a suit must be parties; and to the same effect are the foll;jwing cases: Mechanics' Bank V. Seton, 1 Pet. 306; 7 L. Ed. 156; Caldwell v. §378 PARTIES TO CIVIL ACTIONS. 23d Taggart, 4 Pet. 190; 7 L. Ed. 828; Marshall ▼. Beverley, 5 Wheat. 313; 5 L. Ed. 97; Connecti- cut V. Pennsylvania, 5 Wheat. 424; 5 L. Ed. 125; Williams v. Russell, 19 Pick. 165; to which many others might be added. But to this gen- eral rule there are, according to the authorities, exceptions. Mitford's Pleadinc p. 190; Story's Eq. PI., §§76, 76a. 76b, 76c; Wiser v. Blackly, 1 Johns. Ch. 437. These it is not necessary to notice in this place, as no question is presented requiring it. There is a distinction made in some of the authorities between the subject-matter of the suit and the ob.iect of the suit; and it has been said, that it is not all persons who have an interest in the subject-matter of the suit, but, in general, those only who have an interest in the object of the suit, who are ordinarily required to be made parties. Calvert on Parties, pp. 5, 6, 10, 11. The general rule on the subject may be stated to be, that all are necessary parlies who have an interest in the subject-matter, which may be affected by the decree. Smith v. Trenton Dela- ware I-'alls Companv, 4 N. J. Eq. 508; Crease v. Babcock, 10 Met. (Mass.) 531. This rule is founded on the principle of preventing future liti- gation and avoiding a multiplicity of suits, by adjudicating upon the rights of all parties upon whom a decree may or ought to operate. But this rule requiring all in interest to be before the court, is one somewhat of convenience, and will pot be rigidly enforced where its observance would be attended with great inconvenience, and answer no substantially beneficial purpose. It will be modified, or partially dispensed with, in the dis- cretion of the court, as justice and the exigencies of the case may require. Having thus referred generally to the rule of courts of equity in rela- tion to what persons ought to be made parties to a suit, we shall proceed directly to the considera- tion of tl'.e question in issue, that is to say. the objection that there is a misjoinder of parties de- fendants, and an improper union of causes of ac- tion, or in other words, that the complaint is fatally infected with the vice of multifarious- ness. A bill in equity is said to be multifarious when distinct and independent matters are joined therein ; as, for example, the uniting of several matters perfectly distinct and unconnected agains' one defendant, cr the demand of several matters of a distinct and independent nature against sev- eral defendants. But the case of each particular defendant must be entirely distinct and independ- ent from that of the other defendants, or the objection cannot prevail: for, as said by Judge Story, "the case of one may be so entire as to be incapable of being prosecuted in several suits, and yet some other defendant may be a necessary party to some portion only of the case stated. In the latter case the objection of multifariousness could not be allowed to prevail. So it is not in- dispensable that all the parties should have an in- terest in all the matters contained in the suit; it will be sufficient if each party has an interest in some matters in the suit, and they are connected with the others." Story's Eq. PI., §§ 271, 271a. The same authority lays it down, that "to sup- port the objection of multifariousness, because the bill contains different causes of suit against the same person, two things must concur: first, the different grounds of suit must be wholly distinct; secondly, each ground must be suflScient, as stated, to sustain a bill. If the grounds be not entirely distinct and unconnected, if they arise out of one and the same transaction, or series of transac- tions, forming one course of dealing, and all tend- ing to one end, if one connected story can be told of the whole, the objection does not apply." Id., § 271b. When the point in issue is a matter of common interest among all the parties to the suit, though the interests of the several defendants are otherwise unconnected, still they may be joined. In Salvidge v. Hyde, 5 Madd. 138, Sir John Leach! vice-chancellor, said: "If the objects of the suit be single, but it happens that different persons have separate interests, indistinct questions which arise out of the single object, it necessarily fol- lows that such different persons must be brought before the court, in order that the suit may con- clude the whol« subject." In Boyd v. Hoyt, 5 Paige Ch. 78, Mr. Chancellor Walworth laid down the same doctrine, in substantially the language used by Sir John Leach in Salvidge v. Hyde; and Mr. Daniell, in the first volume of his excellent work on Pleading and Practice in the High Court of Chancery, at page 386, says, in reference to the doctrine held in Salvidge v. Hyde, there is no doubt that the learned judge stated the principle correctly, though in the application of it he went, in the opinion of Lord Eldon, too far. 1 Jac. 151. In Whaley v. Dawson, 2 Sch. & Lef. 370, Lord Redesdale observed, that, in the English cases, where demurrers, because the plaintiff de- manded in his bill matters of distinct natures against several defendants not connected in inter- est, have been overruled, there has been a gen- eral right in the plaintiff covering the whole case, although the rights of the defendants may have been distinct. In such cases the court proceeds on the ground of preventing multiplicity of suits, when one general right is claimed by the plaintiff against all the defendants; and so in Dimmock v. Bixby. 20 Pick. 368, the court held that where one general right is clairned by the plaintiff, al- though the defendants may have separate and dis- tinct rights, the bill of complaint is not multi- farious. In the elaborate case of Campbell v. Mackay, 1 Myl. & C. e03, Lord Cottenham held that where the plaintiffs have a common interest against all the defendants in a suit, as to one or more of the questions raised by it, so as to make them all necessary parlies for the purpose of en- forcing that common interest, the circumstance of the defendants being subject to distinct liabil- ities, in respect to different branches of the sub- ject-matter, will not render the bill multifarious. In the same case his lordship observed that it was utterly impossible, upon the authorities, to lay down anv rule or abstract proposition as to. what constitutes multifariousness which can be made universally applicable. The only way, he said, of reconciling the authorities upon the sub- ject is by adverting to the fact, that, although the books speak generally of demurrers for multi- fariousness, yet, in truth, such demurrers may be divided into two kinds, one of which, properly speaking, is on account of a misjoinder of causes of action, that is to say, uniting claims of so dif- ferent a character that the court will not permit them to be litigated in one record, even though the plaintiff and defendants may be parties to the whole transactions which form the subject of the suit. The other of which, as applied to a bill, isT that a party is brought as a defendant upon a rec- ord with a large portion of which, and with the case made by it, he has no connection whatever. A demurrer for such cause is an objection that the complaint sets forth matters which are multi- farious, and the real cause of objection is, as illustrated by the old form of demurrer, that it puts the parties to great and useless expense; an objection which has no application in a case of mere misjoinder of parties. L^pon this sub- ject, Judge Story says: "In the former class of cases, where there is a joinder of distinct claims between the same parties, it has never been held, as a distinct prooosition, that they cannot be united, and that the bill is of course demurrable for that cause alone, notwithstanding the claims are of a similar nature, involving similar prin- ciples and results, and may, therefore, without inconvenience, be heard and adjudged together. If that proposition were to be established and carried to its full extent, it would go to prevent the unitins of several instruments in one bill, although the 'Parties were liable in respect to each, and the same parties were interested in the property which was the subject of each" ; and, after giving an example in illustration of the in- convenience of an opposite doctrine, he continues: "Such a rule, if established in equity, would be very mischievous and oppressive in practice, and no possible advantage could be gained by it. It would be a multiplication of suits in cases where it could answer no assignable purpose but to have the subject-matter split into a variety of separate bills" ; and further, he denies that such a rule has been established, but says, on the contrary, a different doctrine has been maintained, which is 237 PERSONS HAVING INTEREST — JOINED AS PLAINTIFFS. §378 supported by the most satisfactorv authority (Story's Eo. PI., §§531, 532); and lie states, in conclusion, the result of the princii)les of the cases on the sub.ject to be, that, where there is a com- mon liability in the defendants, and a common interest in the plaintiffs, dilferent claims to prop- erty, at least if the subjects are such as may with- out inconvenience be joined, may be united in one and the same suit: and further, that, where the interests of the plaintiffs are the same, allhoush the defendants may not have a coextensive com- mon interest, but their interests may be derived under different instruments, if the peneral ob- ject of the bill will be promoted by their being united in a sins'le suit, the court will not hesitate to sustain the bill ajrainst all of them. Ibid., §§ 533, 534; Wilson v. Castro, 31 Cal. 426. 12. Parties interested in annulling patent. Per- sons not owning a joint i.Uerest in the real estate, yet if they have a common interest in an- nulling: a patent therefor, they'may be joined as plaintiffs. People v. Morrill, 26 Cal. 352; see also People v. Stratton, 25 Cal. 244. 13. Action by assignee of eciuitable title for specific performance. Where A contracts for the conveyance of certain lands to B, the assignees of B, who had the eauitable title, may jointly maintain an action against A for a specific per- formance. Owen V. Frink, 24 Cal. 177. 14. Joint action by several holders of mechan- ics' liens. Several parties, holding mechanics' liens, may be joined for the enforcement of the liens, even though they hav.-! no common interest together. Barber v. Reynolds, 33 Cal. 502. 15. Agents, action by. Generally, agents can- not maintain action in their own name for causes arising out of the subject-matter of the agency. Lineker v. Ayeshford, 1 Cal. 75; Phillips v. Hen- shaw, 5 Cal. 509. But, if a note is payable to a person, as agent of another, yet he may sue in his own name at law. Ord v. McKee, 5 Cal. 515. If two agents are employed to do a certain busi- ness, each agent may, in some cases, maintain a separate action for his expenses. Conner v. Hutch- inson, 12 Cal. 127. 16. Principals, when they may sue in their own names on contracts made by their agents. See Ruiz V. Norton, 4 Cal. 359 ; Brooks v. Minturn, 1 Cal. 482; Thurn v. Alta Telegraph Co., 15 Cal. 472; Lubert v. Chauviteau, 3 Cal. 462; 58 Am. Dec. 4 1 5. 17. Assignees. Generally an assignee may bring an action in his own name. Wheatley v. Strobe, 12 Cal. 98; 73 Am. Dec. 522. If the assignment was absolute of a whole demand, although he only acquired a portion thereof, yet the assignee may sue for the whole debt. Gradwohl v. Harris, 29 Cal. 150. But the assignment of a portion of a debt does not constitute the assignee a joint owner in the whole debt, and he need not neces- sarily be joined as a party in an action to recover the debt. Leese v. Sherwood, 21 Cal. 152. 18. Assignment of contract as security for debt, etc. "An assi"nmeni nf a contract as a secur- ity for a debt, and also in consideration of a covenant not to sue upon the debt, entitles the assignee to sue on the contract in his own name." Warner v. Wilson, 4 Cal. 310 (syllabus) : see also Gray v. Garrison, 9 Cal. 325. When assignee of a judgment may sue on appeal bond. See Moses V. Thorne. 6 Cal. 88. 19. Indorsers and indorsees. The holder of a non-negotiable note may maintain an action against the person assigning the same to him, and also against every one from whose hands the note has passed by assignment. Hamilton v. McDon- ald. 18 Cal. 128. If a new promise has been made to a payee, a subsequent indorsee succeeds to the rights of the payee, and may maintain an action upon it. Smith v. Richmond. 19 Cal. 476. 20. Joint contracts, bills of lading, and leases. As to joint contracts, both joint contractors must be joined as plaintiffs in an action thereon, not- withstanding only one of the contractors has sus- tained damage. See McGilvery v. Moorhead, 3 Cal. 267. A suit being brought upon a bill of lading made to the plaintiff jointly with another party. Held: the plaintiff had no separate cause of action. ^Tavo v. Stan-sbury, 3 Cal. 465. Also, as to joint leases, see Treat v. Liddell, 10 Cal. 302. 21. Actions by or against counties. See Pol. Code, SS 4000, 4003. and 4452, and notes. See also People v. Myers, 15 Cal. 33; Mendocino County v. Lamar, 30 Cal. 627; Mendocino County V. Morris, 32 Cal. 145; Placer County v. Astin, 8 Cal. 305; Price v. Sacramento County, 6 Cal. 254; Board of Supervisors v. Bird, 31 Ca\. 66; Solano County v. Neville, 27 Cal. 468; Sharp v. Contra Costa County. 34 Cal. 284. 22. Ejectment suits. "All persons having an interest in the subject of the action," etc. Ac- tions of ejectment must beproBccuted in (he name of the real party in interest. Ritchie v. Dorland, 6 Cal. 33. See also Seaward v. Malotte, 15 Cal. 304; Collier v. Corbett, 15 Cal. 183; Stark v. Barrett, 15 Cal. 361: Touchard v. Crow, 20 Cal. 162; 81 Am. Dec. 108. If the action is brought for the community property of husband and wife, the action should be by the husband alone. Mott V. Smith, 16 Cal. 533. An heir at law can main- tain the action without entry upon the land. See- Soto V. Kroder. 19 Cal. 87; see also Estate of Woodworth, 31 Cal. 604; Updeeraff v. Trask, Iff Cal. 458. 23. Non-resident alien. A non-resident alieni may be plaintiff in an action of ejectment. State V. Rogers, 13 Cal. 165. 24. Party to a fraud. A party to a fraud can- not maintain an action thereon. Depuy v. Wil- liams, 26 Cal. 313. 25. Partners. Actions against each other. One partner cannot sue tlie other in an action at law. The remedy is by bill in equity for a dissolution and an account. Barnstead v. Empire Mining Co.. 5 Cal. 299; Stone v. Fouse, 3 Cal. 292; Russell V. Ford, 2 Cal. 86; see also Buckley v. Carlisle, 2 Cal. 420. 26. Church, who represents in an action. Priest' may have power to sue for the church. See San- tillan V. Moses, 1 Cal. 94. 27. The state may be a party. Civil actions. See State v. Poulterer, 16 Cal. 532. A private person cannot bring a suit for private wrongs in the name of the state. See People v. Pafheco, 29 Cal. 210. The state cannot be plaintiff in cer- tain actions, where it has no interest. See People V. Stratton, 25 Cal. 244. 28. Who may cring action to annul patents to mines. The state, and persons who have a right to mine on the land, under the mining laws of this state, may be joined as plaintiffs in an ac- tion to annal a patent for land sold illegally. People V. Morrill, 26 Cal. 352: Wilson v. Castro, 31 Cal. 420; see also, however. People v. Strat- ton. 25 Cal. 244. 29. State cannot be sued. Except as may be authorized by some statute. People v. Talmage, 6 Cal. 256. 30. Administrators, when proper parties. In an action to recover judgment on a promissory note, the suggestion of the death of the defend" ant, and the substitution of iiis administrator, and the continuance of the suit against him, subject the proceedings to such rules of the Probate Act as are applicable to proceedings for the collec- tion of claims against an estate of a deceased per- son. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49. 31. Administrators, when parties. Though the defendant in such an action be described in the captio!! of the complaint as administrator, yet the facts show that it is not sought to charge him as administrator, and no relief is sought against the estate. Held: that the objection that he is sued in his representative capacity is untenable. People V. Houghtaling, 7 Cal. 348; Lathrop v. Bampton. 31 Cal. 17; 89 Am. Dec. 141. 32. Same person interested both as plaintiff and defendant. Person being payee of a note and mortgage, and also payer of the same jointly with^ others, may sue the other joint payers. Where thirteen persons made a joint and several prom- issory note, pavable to thpee of their number, and all joined in the execution of a mortgage to se- cure the payment of the note, the plaintiffs being §^579 PARTIES TO CIVIL ACTIONS. 238 both payers and payees in the note, and the mort- gagors and raortgaRees in the mortgage, and, sub- sequently, the payees of the note broug-ht suit against the other makers, and for a foreclosure of the mortgage. Held: That the suit was prop- erly brought, and plaintiffs were entitled to a judgment of foreclosure. McDowell v. Jacobs, 10 Cal. 387. 33. Actions to foreclose mortgages. The plain- tiff had the right to go into equity and foreclose the mortgage given to the principal to secure the note, if he was really interested in the subject- matter. Ord V. McKee, 5 Cal. 515. 34. Mortgage given to secure separate debts of several persons as mortgagees. "Where a mort- gage is given to secure the separate debts of several persons as mortgagees, iV is a several security, and may be enforced by each creditor, as in case of a separate mortgage. But when other parties are interested in the property, the court will require them to be brought in, before order- ing a sale or foreclosure." Tvler v. Yreka Water Co., 14 Cal. 212 (syllabus). 35. Actions by assignees to foreclose mortgage. Where an assignment of a note and mortgage has been made to plaintiffs, to indemnify them as sureties on a bail bond for the assignor, and where suit is then pending on such bond, it is proper for them as such assignees, to institute suit on the note and mortgage ; and a decree of foreclosure in such case, with directions to pay the money into court, to await the further decree of the court, is proper, or at least there is no error in such a decree to the prejudice of the de- fendants. Hunter v. Levan, 11 Cal. 11. 36. Stranger in interest. A mere stranger, who voluntarily pays money due on a mortgage, and fails to take an assignment thereof, but allows it to be canceled and discharged, cannot afterwards come into equity, and, in the absence of fraud, accident, or mistake of fact, have the mortgage reinstated and himself substituted in the place of the mortgagee. Guv v. Du Uprey, 16 Cal. 195; 76 Am. Dec. 518. 37. Parties plaintiff in suit on injunction bond. If several parties are severally in possession of and cultivating in separate parcels a tract of land, and are sued jointly in ejectment to recover pos- session of the whole tract, and an injunction is obtained, restraining them jointly from taking off the crops, these parties cannot maintain a joint action for damages on the injunction bond, provided their damages are not joint. They cm maintain a joint action for such damages, only, as are joint, such as attorneys' fees. Fowler v. Frisbie. 37 Cal. 34. 38. Action on injunction bond for several dam- ages. The fact that the plaintiff brings a joint action against several persons as trespassers, and obtains an injunction against them jointly, does not estop him, in an action brought against him on the injunction bond, from showing that the damages were several, and from claiming that they cannot maintain a joint action for several damages. Fowler v. Frisbie, 37 Cal. 34. ■ 39. Party plaintiff in action for deceit. An ac- tion for deceit in the sale of land, to which the grantor had no title, should be brought by all the grantees jointly, unless there has been a convey- ance of the cause of action to the plaintiff. A conveyance by one of the grantees to the others, of his interest in the land, does not assign the cause of action for deceit, so as to enable the as- signees to sue for the deceit in their names. Law- rence V. Montgomery. 37 Cal. 183. 40. Plaintiffs in suit upon covenants in a deed. All the grantees should join as plaintiffs in an action upon either a direct or implied covenant in a deed, that the grantor has not sold or en- cumbered the land, or that he is seised of and has a right to convey the same. A deed of the land by one of the grantees to another, does not convey to him the cause of action upon such cove- nant. Lawrence v. Montgomery, 37 Cal. 183. 41. Parties having a part-interest must be joined. All the parties having a part-interest in the sub- ject-matter should be joined as plaintiffs, but the defect must be taken advantage of by answer or apportionment of damages, where it does not ap- pear on the face of the complaint. Whitney v. Stark, 8 Cal. 514: 68 Am. Dec. 360. 42. Constructive parties in action upon bond. In an action upon a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors. Lindsay v. Flint, 4 Cal. 88. § 379. Who may be joined as defendants. Any person may be made a defendant who has or claims an interest in the controversy adverse to the 'plaintiff, or w^ho is a necessary party to a complete determination or settle- ment 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 com- mencement of the action, is in the possession of a tenant, the landlord may he joined as a party defendant. Joining landlord. Civ. Code, § 1949. Parties to foreclosure. Post, § 726. Corporation stockholders. Const., art. xii, §§3, 4; Civ. Code, § 322. Associates, suing by common name. Post, § 388. Quieting title. Sop post, § 738. Executors, unqualified, need not be joined. Post. 5 ir)H7. Fresh parties, bringing in. Post, § 389. Service on one defendant out of several, effect of. Post, § 414. State, suits against. Suits may be brought against state in such manner and in such courts as shall be directed by law. Const., art. xx, § 6. Legislation 8 379. Enacted March 11, 1873; based on l^ractice Act, § 13 (New York Code, § 113), which read: "Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein." Parties having Interest, joined as de- fendants. The formor rule in equity is substantially adopted in this section, un- der which the parties interested not only in the cause of action, but also in the relief to be obtained, or who would be affected by the granting or withholding of such re- lief, were proper parties. Shakespear v. Smith, 77 Cal. 638; 11 Am. St. Eep. 327; 20 Pac. 294; Gardner v. Samuels, 116 Cal. 84; 58 Am. St. Eep. 135; 47 Pac. 935; Wil- son V. Gastro, 31 Cal. 420. The "contro- versy" referred to in this section is the claim for relief, set forth in the complaint, made by the plaintiff against the defend- ant. Gardner v. Samuels, 116 Cal. 84; 58 Am. St. Rep. 135; 47 Pac. 935. All per- sons interested in the subject-matter of the litigation, adverse to the plaintiff, should be made parties defendant. Shake- spear V. Smith, 77 Cal. 638; 11 Am. St. Rep. 327; 20 Pac. 294; Randall v. Duff, 79 Cal. 115; 3 L. R. A. 754; 19 Pac. 532; 21 Pac. 610; Birch v. Cooper, 136 Cal. 636; 69 Pac. 420. Persons who cannot be affected by 239 PERSONS HAVING INTEREST — JOINED AS DEFENDANTS. §379 the jiulgment are not proper parties (Smith V. Lawrence, 38 Cal. 24; 99 Am. Dee. 344); but accommodation grantees are necessary parties defendant, and they have a right to be heard at law in their own defense, before a court of chancery can pronounce definitely on their claims. Knowles v. Inches, 12 Cal. 212. The owner of an equitable right to a part of the proceeds of a note is not a necessary party to an action on the note. Smith v. Woods, 164 Cal. 291; 128 Pac. 748. An action at law for damages cannot be maintained against several defendants jointly, where each acted independently of the others, and there was no concert or unity of design among them. Miller v. Highland Ditch Co., 87 Cal. 430; 22 Am. St. Rep. 254; 25 Pac. 550; Lang v. Lilley and Thurston Co., 20 Cal. App. 223; 128 Pac. 1028. Where a wife brings an action to quiet title to land, to remove a cloud created by her hus- band's deed, the grantee of the husband is the only necessary party defendant: the holders of a mortgage executed by such grantee are not. Peralta v. Simon, 5 Cal. 313. An administrator has no interest in, nor is he a proper party to, suits to deter- mine controversies between the different heirs as to their rights of inheritance. Es- tate of Healy, 137 Cal. 474; 70 Pac. 455; Estate of Wright, 49 Cal. 550; Rosenberg V. Frank, 58 Cal. 387; Roach v. Cofifey, 73 Cal. 281; 14 Pac. 840; Goldtree v. Thomp- son, 83 Cal. 420; 23 Pac. 383; Jones v. Lament, 118 Cal. 499; 62 Am. St. Rep. 251; 50 Pac. 766; McCabe v. Healy, 138 Cal. 81; 70 Pac. 1008. The administrator of a de- ceased debtor or promisor may be joined with survivors jointly liable with the dece- dent to the plaintiff (Lawrence v. Doolan, 68 Cal. 309; 5 Pac. 484; 9 Pac. 159); and the administrator of a deceased executor may be joined with the surviving executor in an action to recover attorneys' fees for services rendered the executors jointly (Briggs V. Breen, 123 Cal. 657; 56 Pac. 633, 886) ; but before the adoption of the codes it was otherwise. Humphreys v. Crane, 5 Cal. 173. Adverse claimants to the rent of property are all necessary par- ties to an action by a tenant to obtain a decision as to who is entitled to receive the rent. McDevitt v. Sullivan, 8 Cal. 592. An attorney, charged with being a party to a fraud in obtaining judgment for his client, is properly joined with his client in a suit to set aside the judgment. Crane v. Hirshfelder, 17 Cal. 467. Contractors under an independent contract are alone responsible for injuries occurring in the progress of the work, before completion and acceptance. Bcswell v. Laird, 8 Cal. 469; 68 Am. Dec. 345. In an action to foreclose a lien on lots assessed for street- work, the contractor may properly join as defendants, in one action, all the owners in common of several lots (Barber Asphalt Pav. Co. v. Crist, 21 Cal. App. 1; 130 Pac. 435); in an action to cancel a deed of trust, the beneficiaries are not necessary parties defendant: their interest is rejire- sented by the trustee. Watkins v. Bryant, 91 Cal. 492; 27 Pac. 775. Judgment must be rendered severally, not jointly: a JU(U- ment against a surviving obligor must be payable de bonis propriis, and a judgment against an administrator must be payable de bonis testatoris, in due course of admin- istration. Bank of Stockton v. Howland, 42 Cal. 129; Briggs v. Breen, 123 Cal. 657; 56 Pac. 633, 886. Two defendants, whose liability is based upon different theories, cannot be joined. Ilannon v. Nuevo Land Co., 14 Cal. App. 700; 112 Pac. 1103. One of the promisors on a bond, joint and sev- eral in form, may be sued separately there- on. Goff V. Ladd, 161 Cal. 257; 118 Pac. 792. Stockholders may be made parties, and several judgments may be entered against those served, or who appear. Turner v. Fidelity Loan Concern, 2 Cal. App. 122; 83 Pac. 62, 70. All stockholders, including a corporation stockholder, who were such when the debt of a corporation was incurred, may be joined as parties de- fendant. Kiefhaber Lumber Co. v. New- port Lumber Co., 15 Cal. App. 37; 113 Pac. 691. If stockholders, in behalf of the cor- poration and other stockholders, sue the corporation for acts complained of, that could not have been consummated other- wise than by the aid of the directors, such directors are proper parties defendant. Harvey v. Meigs, 17 Cal. App. 353; 119 Pac. 941. A temporary injunction, re- straining the payment of dividends on stock in a corporation, or enjoining the stockholders from voting for the election of directors, will not be granted, unless the stockholders whose rights are affected are made parties to the action. Willis v. Lauridson, 161 Cal. 106; 118 Pac. 530. Parties necessary to a complete deter- mination. An executor may be joined with the administrator of a deceased executor, in an action to recoA'er attorneys' fees for services rendered to the executors jointly. Briggs V. Breen, 123 Cal. 657; 56 Pac. 633, 886. Fictitious depositaries of title are necessary parties defendant, and they have a right to be heard at law in their own defense, before a court of chancery can pronounce definitely on their claims. Knowles v. Inches, 12 Cal. 212. An as- signee in insolvency is a necessary party in an action to recover the possession of property, and to set aside a conveyance thereof, alleged to have been made by the judgment debtor in fraud of the creditors. Pfister v. Dascey, 65 Cal. 403; 4 Pac. 393. In an action for the rescission of a sale and conveyance of property to trustees for a corporation, on the ground of fraud, the joinder of an English stockholder, as a plaintiff, with the corporation defrauded, §379 PARTIES TO CIVIL ACTIONS. 240 is not a fatal misjoinder, where he holds bonds and stocks of the corporation, that may have to be canceled or transferred as a part of the relief asked. California Farm etc. Co. V. Schiappa-Pietra, 151 Cal. 732; 91 Pae. 593. The grantor is a proper but not a necessary party defendant in an action to subject to the lien of a judgment the property alleged to have been fraudu- lently conveyed. Blanc v. Paymaster Min- ing Co., 95 Cal. 524; 29 Am. St. Bep. 149; 30 Pac. 765. A guardian is not a proper party in an action affecting only the ward's interest. O'Shea v. Wilkinson, 95 Cal. 454; 30 Pac. 5S8. The guardian appears in the action, sim]ily to manage and take care of the interests of the infant, and is no more a party to the action than the attorney who a^jpears for one who has attained his majority. Emerie v. Alvarado, 64 Cal. 529; 2 Pac. 418; Justice v. Ott, 87 Cal. 530; 25 Pac. 691; O'Shea v. Wilkinson, 95 Cal. 454; 30 Pac. 588. The heirs of a deceased mort- gagor are not necessary parties to an ac- tion to foreclose the mortgage. Finger v. McCaughey, 119 Cal. 59; 51 Pac. 13; Cun- ningham V. Ashley, 45 Cal. 485; De Halpin V. Oxarart, 58 Cal. 101; Bayly v. Muehe, 65 Cal. 345; 3 Pae. 467; 4 Pac. 486; Monterey County V. Cushing, 83 Cal. 507; 23 Pac. 700; Spotts V. Hanle}', 85 Cal. 155; 24 Pac. 738; Collins v. Scott, 100 Cal. 446; 34 Pac. 1085. Several tort-feasors, not acting in concert or by unity of design, are not liable to a joint action for damages, al- though the consequences of the several torts have united to produce an injury to the plaintiff, but a joint action may be maintained to restrain them all from con- tinuing the wrong. Miller v. Highland Ditch Co., 87 Cal. 430; 22 Am. St. Rep. 254; 25 Pae. 550; People v. Gold Run etc. Min. Co.. 66 Cal. 138; 56 Am. Rep. 80; 4 Pac. 1152. To restrain the issuance of bonds by a corporation, it is necessary that some of the persons to whom the bonds are to be issued shall be made parties. Hutch- inson V. Burr, 12 Cal. 103; Patterson v. Board of Supervisors, 12 Cal. 105. To restrain the opening of a road by the road- overseer of the district, the board of super- visors are properh- joined as defendants with the road-overseer, where the com- plaint alleges that there never has been any road or highway over or across the premises, and that one of the defendants, who is the road-overseer, and who is in- solvent, instigated and abetted by the other defendants, who are the board of supervisors, had trespassed upon the plain- tiff's premises, etc., for the purpose of con- structing the road. Myers v. Daubenbiss, 84 Cal. 1; 23 Pac. 102*7. The real owner of the equity of redemption is a necessary party, in an action to foreclose a fraudu- lent mortgage. Randall v. Duff, 79 Cal. 115; 3 L. R. A. 754; 19 Pac. 532; 21 Pac. 610. Where a husband is sued in an action of partition of land claimed as the home- stead, the wife is a necessary party. De Uprey v. De Uprey, 27 Cal. 329; 87 Am. Dee. 81. Where H. & Co. was sued as a partnership^ but there was a failure to prove that others were connected with H. in the transaction, "& Co." may be treated as surplusage, and the action proceed against H. alone. Mulliken v. Hull, 5 Cal. 245. The non-joinder of a secret partner, whose relation to the firm was not known to the plaintiff, cannot be objected to by the defendant. Tomlinson v. Spencer, 5 Cal. 291. Vv'here producers contract to sell their product to an association, which brings an action for an accounting, and each producer is equitably interested in the fund derived from a sale of the sea- son's product held by the plaintiff for dis- tribution, a demurrer for misjoinder of causes and parties defendant is properly overruled. California Raisin Growers' Ass'n V. Abbott, 160 Cal. 601; 117 Pac. 767. Where a consignment of merchandise was made to two defendants as partners, and, after a dissolution of the partnership, two sales of a portion of the goods were made, one by each, and each received the pur- chase-money, the partnership continues for the i^urpose of fulfilling engagements, and the defendants are jointly liable. Johnson V. Totten, 3 Cal. 343; 58 Am. Dec. 412. In an action for a dissolution and accounting, all persons having an interest in the part- nership are necessary parties (Settembre v. Putnam, 30 Cal. 490; Young v. Hoglan, 52 Cal. 466; Wright v. Ward, 65 Cal. 525; 4 Pac. 534); and the assignee of a partner is a necessary party to such action, because no complete determination of the contro- versy^ can be had without his presence. Cuvamaca Granite Co. v. Pacific Paving Co.", 93 Cal. 252; 30 Pac. 525; Harrison V. McCormick, 69 Cal. 616; 11 Pac. 456. Where two persons purchased partnership property from one of two partners, who had taken forcible possession, the other partner cannot maintain a joint action against the partner selling and the pur- chasers. Mason v. Tipton, 4 Cal. 276. A patentee is a necessary party in an action to avoid or set aside a patent for fraud in its procurement, and his right cannot be impaired or determined in an action be- tween third parties. Boggs v. Merced Min- ing Co., 14 Cal. 279. In an action against a trustee, for an accounting, the bene- ficiaries are necessary parties, to protect the trustee against further litigation. Ali- son V. Goldtree, 117 Cal. 545; 49 Pac. 571. There is a broad distinction between ac- tions brought in opposition to trusts and those brought to enforce them; in the former, the beneficiaries are not necessary parties; in the latter, thev are. Watkins V. Bryant, 91 Cal. 492; 27 Pac. 775. In an action for the rescission of a sale and conveyance of property to trustees for a 241 PERSONS HAVING INTEREST — JOINED AS DEFENDANTS, §379 corporation, the trustees, if they hold title to the property at the beginuing of the action, are properly joined as parties de- fendant; they ilo not become improper par- ties because, pending the action, they part with their interest. California Farm etc. Co. V. Schiappa-Pietra, 151 Cal. 732; 91 Pac. 593. Where an intestate had violated a contract, made in his lifetime, to leave a will in fy,vor of his nephew, who had fully jierformed the contract on his part, and the nephew brings an action to en- force a constructive trust against the heirs, the administrator has no interest in the litigation, and is not a necessary part}'. McCabe v. Healy, 138 Cal. 81; 70 Pac. 1008. A subsequent vendee is a necessary party to an action by his vendor against the first vendee to quiet title to land. Birch v. Cooper, 136 Cal. 636; 69 Pac. 420. The vendee of land, purchasing after the ter- mination of a lease thereon, is a proper party defendant in an action by the lessee against the lessor-vendor to recover for the value of improvements made, where the complaint asks to have the amount de- clared a lien on the land, and the land sold in satisfaction thereof. Gardner v. Samuels, 116 Cal. 84; 58 Am. St. Eep. 135; 47 Pac. 935. A promise to pay for im- provements is personal, and does not run with the land (Gardner v. Samuels, 116 Cal. 84; 58 Am. St. Eep. 135; 47 Pac. 935); and such agreement does not bind the as- signee of the lessor of land, where the breach of covenant took place before he took possession. Bailey v. Richardson, 66 Cal. 416; 5 Pac. 910. In the absence of an agreement in the lease to that effect, the tenant has no lien on the land for im- provements placed thereon, during the term of his lease, under an agreement with his landlord to pay for the same at the expiration of the lease. Gardner v. Sam- uels, 116 Cal. 84; 58 Am. St. Rep. 135; 47 Pac. 935. In a judgment creditors' suit upon a stockholder's subscription, all the stockholders should be made parties, so far as practicable, unless some valid ex- cuse is shown for not bringing them in. Turner v. Fidelity Loan Concern, 2 Cal. App. 122; 83 Pac. 62, 70. Where the com- l)laint charged that a defendant was in- debted to the plaintiffs, and had combined with another to defraud them, such defend- ant is a necessary party. Lucas v. Payne, 7 Cal. 92. In the absence of any provision by the legislature, the state cannot be sued (People v. Talmage, 6 Cal. 256); and it is not a necessary party to a suit by a citizen, who claims to have been injured by the alleged failure of a state officer to do his dutv. Nougues v. Douglass, 7 Cal. 65. Defendant in action to determine title or right of possession to real property. Before the adoption of this section, if the landlord was joined with his tenant, and 1 Fair. — 16 the evidence at the trial did not show that he was in possession of any part of the premises, he was entitled to a nonsuit (Hussman v. Wilke, 50 Cal. 250); but the court had power to substitute the landlord for the tenant in possession, in an action in ejectment, after notice and motion for that purpose. Reay v. Butler, 69 Cal. 572; 11 Pac. 463. The tenant having notified the landlord, as required by the Civil Code, of the pendenc}' of an action, and per- mitted him to appear and defend in the tenant's name, the latter cannot interfere with any of the subsequent proceedings to the landlord's injury. Valentine v. Ma- honey, 37 Cal. 389. The landlord and a tenant in possession are proper parties defendant. Easton v. O'Reilly, 63 Cal. 305; Oakland Gas Light Co. v. Dameron, 67 Cal. 663; 8 Pac. 595. How judgment may he. See note post, §§578,579. CODE COMMISSIONERS' NOTE. 1. Parties unitel in interest. All yiin'ties united in interest should be joined See § i!82, post. 2. Tenants in common. One or more may be defendants. See §384, post; also §378, ante, note. See also S 382, post. 3. When one party may defend for all. See § 382, post. 4. Married women. See § 370, ante. 5. Executor, administrator, etc. See § 369, ante. 6. Infants, guardians, etc. See § 372, ante. 7. Trustees of express trust. See § 369, ante. 8. Partners. May be sued in firm name. § 388, post. 9. Actions to quiet title. See § 738, post. 10. Personal representatives and successors in interest. See § 38.5, post. 11. Parties severally liable upon the same obli- gation. See § 383, post. 12. If a necessary party will not consent to be joined as plaintiff, he may be made defendant. See S 382, post. 13. Substitution of another party as defendant. See § 386, post. See also § 389, post, party desir- ing to be made a defendant. 14. Interveners. See § 387, post. 15. Action against state. The state cannot be sued. People v. Talmage, 6 Cal. 256. 16. Construction of section as to ejectment suits. Former law as to landlord and tenant, when parties to ejectment suit modified. The last sentence, "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," was added to avoid the rule laid down in Dimick v. Deringer, 32 Cal. 48S, that, "when the premises are in pos- session of a tenant, the tenant is, and the land- lord is not, a proper party defendant." All who have given the subject any consideration will. con- cede that the plaintiff ou,<;ht to have the right to make the landlord a party to the action, and to bind him by the judgment, otherwise he would, in every such case, be driven to two actions to determine what could as well be settled in one. The additional clause changes, to a great extent, the construction heretofore given to this section (Practice Act, § 13) by our courts. The reasons for the change are apparent, and attention has long since been called to its necessity by our su- preme court. In Valentine v. Mahoney, 37 Cal. 393, the court say: "It was decided at an early day in this court, that the provision of this sec- tion, that 'any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff.' was not applicable to actions of ejectment (Garner v. Marsh-ill. 9 '^'■1. 270; see also Hawlvins v. Rechert, 28 Cal. 534)^ §379 PARTIES TO CIVIL ACTIONS. 242 and that construction has prevailed to the pres- ent time. But it is readily seen that in all cases in which the defendant is holding under a lease, and the lessor's title is in issue, it is proper, if not necessary, that the latter should have an opportunity to participate in the defense, for no one is as competent to present and defend his title as he. The landlord, having been in posses- sion, and having transferred it to the tenant, ought not to be deprived of the possession at the expiration of the term by proceedings in which he could take no part. And, on the other hand, the party holding the true title might be kept out of possession for years, should the person claim- ing the adverse title lease the premises to differ- ent persons for such short terms that the tenancy of any one would expire before a suit against him could be prosecuted to final judgment. But this construction of that section has been too long maintained to be departed from by the courts, and if a change in the rule is desirable or necessary, it must come from the legislature. Considera- tions of the character alluded to have induced the courts to give some regard to the rights and posi- tion of the landlord, and it is held that when the tenant has notified the landlord of the pendency of the action, and has permitted him to appear and defend in the tenant's name, the tenant can- not interfere with any subsequent proceedings to the prejudice of the landlord. See Button v. War- schauer, 21 Cal. 619; 82 Am. Dec. 76.5; Calder- wood V. Brooks, 28 Cal. 156; Dimick v. Deringer, 32 Cal. 488. In Button v. Warsehauer, although the opinion of Mr. Chief Justice Field was not e-xpressly concurred in by Mr. Justice Cope and Mr. Justice Norton, it is apparent that the case is authority for the position above stated, from the fact that the tenant, who was the defendant, executed a release of errors, and that, notwith- standing this, the court, at the instance of the landlord of the defendant, reviewed the cause and reversed the judgment. If the landlord, though not nominally a party to the record, when once permitted by the tenant to appear and defend the action, can insist upon the right to conduct the defense from that point, this right cannot spring from the notice from the tenant to assume the burden of the defense, but proceeds from the fact that he will be affected by the judgment. The judgment is conclusive, both upon the landlord and tenant, in a subsequent action between them, involving the issue of eviction of the tenant by virtue of the judgment (Wheelock v. Warsehauer, 21 Cal. 309; Wheelock v. Warsehauer, 34 Cal. 265); and this is another instance in which the judgment binds others than the parties to the rec- ord and their privies. A possible future contro- versy between the landlord and tenant was not the only nor the principal purpose in view in securing to the landlord the right to defend the action in the tenant's name, but it was, that the issue between the plaintiffs and the landlord's title might be litigated and determined." Valen- tine V. Mahoney, 37 Cal. 393. The change made materially modifies the decisions of the supreme court as to proper parties to an ejectment suit. Among the decisions thus modified, to some ex- tent at least, are the following: Winans v. Christy, 4 Cal. 70; 60 Am. Dec. 597; Ritchie v. Borland, 6 Cal. 33; Garner v. Marshall, 9 Cal. 268; War- ing V. Crow, 11 Cal. 366; Sampson v. Ohleyer, 22 Cal. 200; Hawkins v. Reichert, 28 Cal. 535; Dimick v. Deringer. 32 Cal. 489; Valentine v. Mahoney, 37 Cal. 393. And this modification ex- tends also to other cases. The rule of law laid down by the supreme court heretofore has been, that ejectment was a possessory action, and must be brought against the occupant; it determines no rights but those of possession at the time, and it matters not who has, or claims to have, the title of the premises. Garner v. Marshall, 9 Cal. 268; Burke v. Table Mountain Water Co., 12 Cal. 403; Dutton v. Warsehauer, 21 Cal. 609; 82 Am. Dec. 765; Fogarty v. Sparks, 22 Cal. 148; Owen v. Fowler. 24 Cal. 192; Lyle v. Rollins, 25 Cal. 440; Hawkins v. Reichert, 28 Cal. 534; Klink v. Cohen, 13 Cal. 623. 17. Parties to a foreclosure suit. It has been held, in an action for the foreclosure of a mort- gage, if the creditor, the debtor, and the title to the mortgaged premises are before the court, it has jurisdiction of the case, though there may be other holders of distinct liens who might have been made parties to the suit, and were omitted. Hayward v. Stearns, 39 Cal. 58. 18. A defendant in possession, not directly in- terested in the question in litigation between other parties to the action, should not be affected by the results of such litigation. Welton v. Palmer, 39 Cal. 456. 19. Foreclosure of mortgages. In actions to foreclose mortgages, all persons interested should be made parties; and as to who should be joined as defendants, see Burton v. Lies, 21 Cal. 87; Boggs V. Fowler, 16 Cal. 559; 76 Am. Dec. 561; Goodenow v. Ewer, 16 Cal. 461; 76 Am. Dec. 540; Horn v. Jones, 28 Cal. 194; De Leon v. Higuera, 15 Cal. 483; Montgomery v. Tutt, 11 Cal. 307; Luning v. Brady, 10 Cal. 265; Hocker V. Reas, 18 Cal. 650; Bludworth v. Lake, 33 Cal. 255; Id., 33 Cal. 265; Carpentier v. Williamson, 25 Cal. 159; Belloc v. Rogers, 9 Cal. 123; Fallon V. Butler. 21 Cal. 24; 81 Am. Dec. 140; Skinner V. Buck, 29 Cal. 2.53; Eastman v. Turman, 24 Cal. 382; Heyman v. Lowell, 23 Cal. 106. All persons interested in the premises prior to a suit brought to foreclose a mortgage, or to enforce a mechanic's lien, whether purchasers, lienholders, devisees, remaindermen, reversioners, or encum- brancers, must be made parties, otherwise their rights will not be affected. Persons who acquire interests by conveyance or encumbrance after suit brought need not be made parties; and who are and who are not proper parties to a foreclosure suit, is carefully discussed in Whitney v. Hig- gins. 10 Cal. 547, 70 Am. Dec. 748, and authori- ties there cited. A tenant need not, from the mere fact of his tenancy, be made a party to the foreclosure suit. McDermott v. Burke, 16 Cal. 580. 20. Community property. Where the commu- nity property of husband and wife, or the separate property of the wife, is the subject of an action for foreclosure. See Kohner v. Ashenauer, 17 Cal. 578; Revalk v. Kraeraer, 8 Cal. 66; 68 Am. Dec. 304; Marks v. Marsh, 9 Cal. 96; Powell v. Ross, 4 Cal. 197; see note to §§ 370, 371, ante. 21. Equitable actions. All persons interested legally or beneficially should be made parties. See Wilson V. Castro, 31 Cal. 420, commented on in note to § 378, ante. 22. Trustees and assignees. If a debtor as- signs his property to trustees, to be by them sold, and proceeds divided pro rata among the cred- itors, one creditor cannot, after the property has been converted into money, maintain an action against the trustees for an accounting and for judgment for his pro rata share, without making the other creditors parties and the assignor a de- fendant. McPherson v. Parker, 30 Cal. 455; 89 .^.m. Dec. 129. Where A owed plaintiff, and con- veyed his property to B, to be sold for his bene- fit, and drew an order, in favor of plaintiff, on B, who accepted it, and it was charged that B had subsequently conveyed a portion of the property to A without consideration, praying that B be compelled to execute the trust in favor of plain- tiff. Held: that A was a proper and necessary party to the action. Lucas v. Payne, 7 Cal. 92. In an action by one of several cestuis que trust, to declare and enforce an implied trust in rela- tion to land, all the persons who are entitled to, or claim to be entitled to, a portion of the trust estate, are proper parties defendant. Jenkins v. Frink, 30 Cal. 586; 89 Am. Dec. 134. 23. Assignees. The vendor, or the assignee of the rights and claims of the vendor, is not bound to know every assignee, though they were numer- ous. Truebody v. Jacobson, 2 Cal. 286. 24. Parties to action between mining partners, and to dissolve mining partnership. Where two of three partners in a mine make a contract with a person not interested in the same, by which he becomes entitled to a share of their interests, and a like share of the profits of their interests, the two are the only necessary parties defendant in an action brought by the person they contract with, to determine his right to a share in the mine 243 PARTIES DEFENDANT IN ACTION TO DETERMINE CONFLICTING CLAIMS. § 380 and a corrpsponding share of ths pr;)fits on their interest. But in an action to tal'e account of a mining partnership and dissolve the same, and sever the interests of the several partners, all those owning interests in the partnershi]) are necessary parties. Settembre v. Putnam, 30 Cal. 490 (syllabus). 25. Persons not made parties not affected by suit, 'i'he rights of a third party cannot be de- termined or impaired in any suit between two other parties. Boggs v. Merced Mining Co., 114 Cal. 279. 26. Parties to action to enjoin issuance of county bonds, etc. In an action to enjoin the issuance of bonds, it may be necessary that some of the persons to whom the bonds are to be issued should be joined as defendants. See Hutchinson V. Burr, 12 Cal. 103; Patterson v. Board of Super- visors, 12 Cal. 105. 27. Attorney joined with his client, when. Where there has been fraud in obtaining a judg- ment, if the attorney is a party to the fraud he may be joined with his client as a defendant, in an action to set aside the judgment. Crane v. Hirshfelder, 17 Cal. 467. 28. Unknown defendant. When the name of the defendant is unknown, fictitious name may be tised, etc. See § 474, post. 29. Real estate may be made a party in actions in rem, as for collection of taxes, etc. See People V. Rains, 23 Cal. 131. 30. Principal and agent, or attorney. When the principal, or when the agent, is liable. See Engels V. Heatly, 5 Cal. 136; Haskell v. Cornish, 13 Cal. 45; McDonald v. Bear River etc. Mining Co., 13 Cal. 221; Shaver v. Ocean Mining Co., 21 Cal. 45 ; Love v. Sierra Nevada etc. Mining Co., 32 Cal. 639; 91 Am. Dec. 602; Hall v. Crandall, 29 Cal. 568; 89 Am. Dee. 64. 31. Actions against counties, supervisors, etc. See § 378, ante, and note. In an action against or for a county, it must be in the name of the county, not in the name of the people. People v. Myers, 15 Cal. 33; McCann v. Sierra County, 7 Cal. 121; Price V. Sacramento County, 6 Cal. 254; see also, however, Oilman v. Contra Costa Countv, 8 Cal. 52; 68 Am. Dec. 290; Hastings v. San Francisco, 18 Cal. 49. The right to sue a county is not confined to actions of tort, malfeasance, etc., but extends to all accounts after their pres- entation to the board of supervisors. People v. Board of Supervisors, 28 Cal. 431. But the ac- count or claim, of whatever nature, must have been first presented to the supervisors, and re- jected, before any action thereon can be main- tained against the county. McCann v. Sierra County, 7 Cal. 121. The agents of the county, and its officers, may be joined as defendants in certain cases. McCann v. Sierra County, 7 Cal. 121. At least a majority of the piembers of the ■board of supervisors should be made defendants in an action brought to enjoin the board from purchasing property for the use of the county. Trinity County v. McCammon, 25 Cal. 119; see further. Political Code, S 4000. 32. Joinder of parties who have no joint in- terest. It seems that the joinder of two persons as co-defendants, who have no joint interest in the subject:matter of the suit, and are under no joint liability, will, unless the mistake be cor- rected in the court below, bo error. Sterling v. liiinson. 1 Cal. I7s. 33. Accommodation grantees and fictitious de- positaries of title. When may be made parties. It was shown that some of the parlies were mere accommodation grantees and fictitious depositaries of title; but it was held that they have a right to be heard at law in their own defense, before courts of chancery can pronounce definitely on their claims, however false they may appear, inter alia. Knowles v. Inches, 12 Cal. 212. 34. Action against one attaching creditor by a subsequent attaching creditor. Property was seized under two attachments, and wa.s claimed by a third party. Both attaching creditors in- demnified the sheriff, who proceeded to sell it, and paid the proceeds to the first attaching cred- itor, the amount not equaling his judgment; and afterwards the party claiming the property ob- tained judgment against the sheriff for the value of the property. Held: That the recourse must be had against the first attaching creditor, for whose benefit the property was sold. In such a case the attaching creditors do not stand in the position of joint trespassers, the seizure of the second being subject to the first. Davidson v. Dallas, 8 Cal. 227. 35. Actions against contractors by third par- ties for damages to property of such parties. Where parties employed architects, reputed to be skilled in their profession, to construct, at a designated point on a creek, a dam or embank- ment, of certain specific dimensions, capable of resisting all floods and freshets of the stream for the period of two years, and to deliver it com- pletely by a given time, and before the embank- ment was completed it was broken by a sudden freshet', and a large body of water, confined by it, rushed down the channel of the stream, carry- ing away and destroying in its course the store of plaintiffs, with their stock of merchandise. The employers exercised no supervision, gave no directions, furnished no materials, nor had they accepted the work. Plaintiffs brought suit to re- cover the damage sustained by them against the employers and contractors. Held: that the lat- ter alone were liable. The relation of the par- ties is that of independent contractors. The relation of master and servant, or superior and subordinate, did not exist between them, and therefore the doctrine respondeat superior does not apply to the case. Boswell v. Laird, 8 Cal. 469; 68 Am. Dec. 345. 36. Actions on contracts. In an action on a contract, only the contractors therein can be made parties. See Barber v. Cazalis, 30 Cal. 92. 37. Actions against public officers. A public officer, who stands in the relation of agent of the government, or of the public, is not personally liable upon contracts made by him as such officer, and within the scope of his 'legitimate duties; but this reason does not apply when neither the government nor the public in any way can be considered or held responsible for a contract made by a person, although a public officer. Dwindle V. Henriquez. 1 Cal. 392. 38. Action for malicious prosecution. Dreux v Domec, 18 Cal. 83. § 380. Parties defendant in an action to determine conflicting- claims to real property. In an action brought b}' » person ont of possession of real property, to determine an adverse 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 whom the judgment has passed. Actions to quiet title. See post, § 738. Writ of possession. See post, § 682. Tresh parties, bringing in. See post, § 3 89. Kon-joinder or misjoinder of parties. See post, 5 430. Legislation § 380. 1. Enacted March 11, 1872, and then read: "In an action brought by a per- son out of possession of real property to deter- mine an adverse claim of an interest or estate therein, the person making such adverse claim PARTIES TO CIVIL ACTIONS. 244 in possession, the plaintiff cannot have judgment that his title be quieted, and that defendant be removed from posses- sion; because the findings and the judg- ment, so far as the possession is concerned, are in contradiction of the complaint, and the plaintiff cannot have a judgment in direct contradiction of the complaint. Bryan v. Tormey, 3 Cal. Unrep. 85; 21 Pac. 725; Von Drachenfels v. Doolittle, IT Cal. 295; 19 Pac. 51,S. Writ for possession of the premises. Where the gravamen of an action is to determine conflicting claims to real prop- erty, brought by a person in possession at the time the action is commenced, but who, during pendency, is turned out of posses- sion, a judgment in favor of the plaintiff may provide for a restitution of the prem- ises; and the action remains an equitable one. Polack v. Gurnee, 66 Cal. 266; 5 Pac. 229, 610; Kitts v. Austin, 83 Cal. 167; 23 Pac. 290. And where the answer of a de- fendant out of possession sets up an ad- verse claim of title, which is found to be superior to that of the plaintiff, the court may award possession to such defendant. Kitts V. Austin, 83 Cal. 167; 23 Pac. 290. Who may be dispossessed under writ of posses- sion. See note 39 Am. Dec. 311. §381 and all persons in possession must be joined as defendants." 2. Amended by Code Amdts. 1873-74, p. 295. Action to recover adverse claims to real property. A person out of possession may maintain an action to quiet title. People V. Center, 6'6 Cal. 551; 5 Pac. 263; 6 Pac 481; Bryan v. Tormey, 3 Cal. Unrep. 85 21 Pac. 725; Hyde v. Eedding, 74 Cal. 493 16 Pac. 380; Castro v. Barry, 79 Cal. 443 21 Pac. 946; Brusie v. Gates, 80 Cal. 462 22 Pac. 284; McGrath v. Wallace, 85 Cal 622; 24 Pac. 793. Judgment. The findings are sufficient if they follow the language of the pleadings, or if they make definite reference to the pleadings. Hihn v. Peck, 30 Cal. 280; Bryan v. Tormey, 3 Cal. Unrep. 85; 21 Pac. 725. Where it is adjudicated that the judgment defendant has no adverse claim to or interest in the property in contro- versy, the subject of the litigation is ex- hausted, and if the plaintiff is out of pos- session, the judgment necessarily entitles him to possession. Landregan v. Peppin, 94 Cal. 465; 29 Pac. 771; Merritt v. Camp- bell, 47 Cal. 542. Where the complaint alleges that the plaintiff was the owner and in possession, and the findings are that he is the owner, but that the defendant is § 381. Parties holding title under a common source, when may join. Anjr two or more persons claiming any estate or interest in lands under a com- mon source of title, whether holding as tenants in common, joint tenants, coparceners, or in severalty, may unite in an action against any person claim- ing an adverse estate or interest therein, for the purpose of determining such adverse claim, or of establishing such common source of title, or of declaring the same to be held in trust, or of removing a cloud upon the same. 64 Cal. 134; 49 Am. Kep. 686; 27 Pac. 863. It is otherwise in equity, for an account- ing. Goodenow v. Ewer, 16 Cal. 461; 76- Am. Dec. 540; Abel v. Love, 17 Cal. 233. The principle enunciated in Pico v. Colum- bet, supra, has no application to the case of money received by one tenant in com- mon from sales of water, or profits derived from the operation of a ditch or mine. Abel V. Love, 17 Cal. 233. Where an es- tate is sold in lots, to different persons,, the purchasers cannot unite in an action for specific performance: each purchaser's case being distinct, and depending upon its own i^eculiar circumstances, there must be distinct and separate actions. Owen v. Frink, 24 Cal. 171. One of two tenants in common of personal property can main- tain replevin against the other, where there is an agreement that on a sale of the property the proceeds shall be equally divided. Hewlett v. Owens, 50 Cal. 474. Persons having a common interest in the subject of an action to redeem, and in ob- taining the general relief demanded, may join as plaintiffs (Wadleigh v. Phelps, 149 Cal. 627; 87 Pac. 93)^ as also may persons. • Co-tenants may sever. See post, § 384. Ejectment. See post, § 738, and ante, § 379. Quieting title. See post, § 738. Joint tenants. See post, § 384. Legislation § 381. 1. Enacted March 11, 1873 (based on Stats. 1867-68, p. 158), and then read: "Persons .claiming an interest in lands under a common source of title may unite as plaintiffs in an action against any person claim- ing an adverse interest therein, for the purpose of d'-terraining such adverse claim, or of estab- lishing such common source of title, or of de- claring the same to be held in trust, or for removing a cloud thereon." 2. Amended by Code Amdts. 1873-74, p. 295. Joinder of parties holding title under common source. The general rule is, that unconnected parties may join in bringing a bill in equity, where there is one con- nected interest 'among them all, centering in the point in issue in the case. Owen v. Frink, 24 Cal. 171. An action to recover rents and profits could not be maintained at law Vjy one tenant in common against another, before the adoption of the code, and under the common-law rule. Pico v. Columbot, 12 Cal. 414; 73 Am. Dec. 550; Howard v. Throckmorton, 59 Cal. 79; Mc- Cord V. Oakland Quicksilver Mining Co., 245 JOINDER OF PARTIES — ONE OR MORE MAY SUE OF DEFEND. §382 claiming as devisees under the same will, and seeking to remove from tlieir title the cloud of a fraudulent deed that affects the whole land, (iillespie v. Gouly, 152 Cal. 6i'S; 93 Pac. 85(5. Tenants in common of an irrigation-ditch may join in an ac- tion for an injunction to i)revent the stop- page of the How of water in such ditch, notwithstanding their several ownerships of lands, and of water to irrigate the same I'rom said ditch. Smith v. Stearns Rancho •Co., 129 Cal. 58; 61 Pac. 662; i^os Robles Water Co. v. Stoneman, 146 C-'al. 203; 79 Pac. 880. The joinder of tenants in com- mon in real actions was not permissible, l;efore the code (De .lohnson v. Sepulbeda, 5 Cal. 149; Throckmorton v. Burr, 5 Cal. 400; Welch v. Sullivan, 8 Cal. 165); but for injuries to their common property, as trespass quare clausum fregit, nuisance, and the like, all were required to join. De Johnson v. Sepulbeda, 5 Cal. 149. A tenant in common may recover an entire tract against all persons in possession, except tis co-tenants (Stark v. Barrett, 15 Cal. 361; Touchard v. Crow, 20 Cal. 150; 81 Am. Dec. 108; Touchard v. Keyes, 21 Cal. 202; Mahoney v. Van Winkle, 21 Cal. 552; Carpentier v. Mendenhall, 28 Cal. 484; 87 Am. Dec. 135); and he may m.aintain an action for the recovery of land, without joining his co-tenants (Morenhaut v. Wil- son, 52 Cal. 263); and, where ousted by a co-tenant, he may maintain ejectment, un- less such co-tenant is acting as his bailiff, by agreement, when an action for an ac- counting lies. Pico V. Columbet, 12 Cal. 414; 73 Am. Dec. 550; Carpentier v. Web- ster, 27 Cal. 524; Carpentier v. Mendenhall, 28 Cal. 484; 87 Am. Dec. 135; Carpentier V. Gardiner, 29 Cal. 160; Carpentier v. Mitchell, 29 Cal. 330. Damages may be recovered for ouster by a co-tenant, the same as for ouster by a stranger; but the only damages the plaintiff is entitled to recover are such as grow out of and are incident to the ouster upon which the re- covery rests. Carpentier v. Mitchell, 29 ■Cal. 330. Where there is an ouster by a stranger, who afterwards purchases the interest of the co-tenant, and becomes a tenant in common in possession, his pos- session then loses its hostile character, and damages are limited to those of the period from the date of the ouster to the date on which he became the tenant in common. Carpentier v. Mendenhall, 28 Cal. 484; 87 § 382. Parties in interest, when to be joined. When one or more may sue or defend for the whole. Of the parties to the action, those who are unitod in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, 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 interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Am. Dec. 135. In an action to quiet title, the comi)laint should set forth tliat the ]>laintift"s deraign their title from the same source, and this allegation must be proved, and be found by the court, where that fact is in issue; but where there is no plea of misjoinder of plaintiffs, the failure of the plaintiffs so to plead and of the court so to find is immaterial. Dewey v. Par- cells, 137 Cal. 305; 70 Pac. 174. The ad- ministrator of a deceased co-tenant's estate may be joined as plaintiff with the surviv- ing co-tenants, in all cases in which the deceased co-tenant could have been joined, until the administration of the estate rep- resented is closed, or the property dis- tributed under decree of the probate court. Meeks v. Hahu, 20 Cal. 620; Touchard v. Keyes, 21 Cal. 202; Goller v. Fett, 30 Cal. 481; Reynolds v. Hosmer, 45 Cal. 616. Joint tenants were formerly required to join, where the land was held jointly. Dewey v. Lambier, 7 Cal. 347; Cohas v. Raisin, 3 Cal. 443. Parties making sepa- rate instruments to secure the same debt may join as plaintiffs in an action to re- deem (Wadleigh v. Phelps, 149 Cal. 627; 87 Pac. 93), and devisees under a will may join in an action to remove a cloud affect- ing the lands of both. Gillespie v. Gouly, 152 Cal. 643; 93 Pac. 856. CODE COMMISSIONEES' NOTE. Stats. 18C7- 68, p. 158. 1. Actipns respecting common property. Ac- tions for the diversion of the waters of ditches are in the nature of actions for the abatement of tiuisance, and may be maintained by tenants in common in a joint action. De Johnson v. Sepul- beda, 5 Cal. 151; Parke v. Kilham, 8 Cal. 79; 68 Am. Dec. 310. Tenants in common in a mine may sue jointly to recover possession of all of their several undivided interests. Goller v. Fett, 30 Cal. 481. And the executor of a tenant in common can be united with the surviving co-ten- ants. Touchard v. Keyes, 21 Cal. 202. A tenant in common, employed as agent, may sue his co- tenant for the services rendered in resoect to the land. Thompson v. Salmon, 18 Cal. 632. One of several tenants in common has a right to sue alone for his moiety. Covillaud v. Tanner, 7 Cal. 38. 2. Action of ejectment, where there are sev- eral co-tenants. In this state, two or more of several co-tenants cannot be joined as parties in an action of ejectment. The rule which deter- mines whether tenants in common should sue jointly or severally depends upon the nature of their interest in the matter or thing which is in controversy. For injuries to their common prop- erty, as trespass quare clausum fregit, or nui- sance, etc., they should all be joined; but they must sue severally in real actions, geTierally. as they all have separate titles. See Coke Lit., p. 197; De Johnson v. Sepulbeda, 5 Cal. 151. §382 PARTIES TO CIVIL ACTIONS. 246; Joinder, misjoinder, non-joinder. Post, § 430. Executors, etc., not qualified, need not be Joined. Post, § 1587. Legislation § 382. Enacted March 11, 1873; based on Practice Act, § 14 (New York Code, § 119), which had the word "shall" instead of "must" before "be joined." Joinder of parties united in interest. All parties in interest must be joined, either as plaintiffs or as defendants (Wil- liams V. Southern Pacific R. E. Co., 110 Cal. 457; 42 Pac. 974; Birch v. Cooper, 136 Cal. 636; 69 Pac. 420); and this rule is general, and applies to undertakings, obli- gations, and promises of all possible de- scriptions. Moreing v. Weber, 3 Cal. App. 14; 84 Pac. 220. The rule requiring all parties in interest to be before the court is somewhat one of convenience, and will not be rigidly enforced, where its obser- vance would be attended with great in- convenience, and answer no substantially beneficial purpose, but will be modified or partially dispensed with, in the discretion of the court, as justice and the exigeucies of the case may require. Wilson v. Castro, 31 Cal. 420. When an objection is not taken either by demurrer or answer, defect of parties is deemed waived. Dunn v. Tozer, 10 Cal. 167; Wendt v. Ross, 33 Cal. 650; Rutenberg v. Main, 47 Cal. 213; Trenor v. Central Pacific R. R. Co., 50 Cal. 222; Foley v. Bullard, 99 Cal. 516; 33 Pac. 1081. Parties plaintiff are all who are in- terested as plaintiffs in the subject-matter of the action. Whitney v. Stark, 8 Cal. 514; 68 Am. Dec. 360; "^People v. Morrill, 26 Cal. 336; Salmon v. Rathjens, 152 Cal. 290; 92 Pac. 733. Party refusing to join may be made de- fendant. Where antagonism of interests exists, a person who is a necessary party plaintiff, but who cannot be joined because of such antagonistic interests, may be made a party defendant. Bvrue v. Byrne, 94 Cal. 576; 29 Pac. 1115*; 30 Pac. 196. A partner, interested, but who refuses to join as plaintiff, may be made a party defend- ant, the reason therefor being stated in the complaint (Nightingale v. Scannell, 6 Cal. 506; 65 Am. Dec. 525; O'Connor v. Irvine, 74 Cal. 435; 16 Pac. 236; Cuyamaca Granite Co. v. Pacific Paving Co., 95 Cal. 252; 30 Pac. 525); and if the consent of an heir, who should be joined, cannot be obtained, he may be made a defendant. Salmon v. Rathjens, 152 Cal. 290; 92 Pac. 733. Effect of joinder, as defendant, of one refusing to become plaintiff. See note post, § 3!i.:. Joinder where question is of common in- terest and parties are numerous. A party, who seeks to avail himself of the pro- visions of this section, must allege facts which bring his case within the provisions: he must show that the question is one of common or general interest, of many per- sons, or that parties are numerous, and that it is impracticable to bring them all. before the court. Carey v. Brown, 58 Cal- 180. In an action upon the joint indebted- ness of two partners, the complaint should be against both, as both are united in in- terest. Baker & Hamilton v. Lambert, 5- Cal. App. 708; 91 Pac. 340. If an obliga- tion is joint, and not joint and several, the joint obligors must all be made parties. Moreing v. Weber, 3 Cal. App. 14; 84 Pac. 220. The second pledgee of a note and mortgage, though not the holder thereof, is entitled to foreclose the same, where the first pledgee, who is the holder, is made a party to the action. Patten v. Pepper- Hotel Co., 153 Cal. 460; 96 Pac. 296. This- section applies to an action for partition, brought for the benefit of all persons in- terested in the estate. Adams v. Hopkins,. 69 Pac. 228. It permits the joinder, in actions of condemnation, of all defendants whose lands are affected by the action. Sacramento County v. Glann, 14 Cal. App. 780; 113 Pac. 360. This section, and § 383,. post, authorize the joinder of a wife with her husband, in an action against him to recover for necessaries contracted for solely by him. Evans v. Noonan, 20 Cal. App. 288; 128 Pac. 794. A complaint, in which there is united with some defend- ants another, against whom no liability is alleged or recovery sought, is not neces- sarily defective. Asevado v. Orr, 100 Cal.. 293; 34 Pac. 777. This section is a re-en- actment of § 14 of the Practice Act, which- was construed as intended to apply to suits, in equity and not to actions at law. An- drews V. Mokelumne Hill Co., 7 Cal. 330.. In equity proceedings, the rule is relaxed,, requiring all persons materially interested to be before the court; it is always dis- pensed with, where it is inconvenient or im- practicable to get them before the court, as- in the case of joint associations composed of numerous individuals. Von Schmidt v. Huntington, 1 Cal. 55; Gorman v. Russell,. 14 Cal. 531. All parties to joint contracts must be made parties defendant. Harrison v. McCormiek, 69 Cal. 616; 11 Pac. 456; Farmers' Exchange Bank v. Morse, 129 Cal. 239; 61 Pac. 1088. Where all parties to a contract are not made parties, the plain- tiff is not entitled to recover, because the allegations and the proof will not corre- spond (Cotes v. Campbell, 3 Cal. 191; Mor- rison V. Bradley etc. Corporation, 5 Cal.. 503; Farmer v. Cram, 7 Cal. 135; Harrison V. McCormiek, 69 Cal. 616; 11 Pac. 456); and several persons, contracting together with the same party for one and the same act, are regarded as jointly, and not in- dividually or separately, liable, in the ab- sence of any words to show that a distinct as well as an entire liability was intended to be fastened upon the promisors. Har- rison v. McCormiek, 69 Cal. 616; 11 Pac^ 456. In an action to enforce a joint note^ 247 JOINDER — PARTIES NUMEROUS AND INTEREST COMMON. §382 upon which there is no several liability, all the joint makers must be united. Farmers' Exchange Bank v. Morse, 129 Cal. 239; 61 Pac. 1088. In an action for an injunction, the joinder of all tortfeasors as defend- ants is permissible. Miller v. Highland Ditch Co., 87 Cal. 430; 22 Am. St. Kep. 254; 25 Pac. 550. A stockholder may sue in be- half of himself and other stockholders, for a misappropriation of the funds of the cor- jioration (Neall v. Hill, 16 Cal. 145; 76 Am. Dec. 508; Wickersham v. Crittenden, 93 Cal. 17; 28 Pac. 788); and all who par- ticipate in such fraudulent acts are prop- erly joined as defendants (Andrews v. Pratt, 44 Cal. 309); for, each of them be- ing alleged to have been in some way con- nected with the transaction, complete jus- tice cannot be done in their absence; and it is not necessary that the plaintiff join with him other stockholders, or make them defendants, as he has a right to bring the action in his own behalf and for his indi- vidual account, as well as in behalf of other stockholders. Wickersham v. Crit- tenden, 93 Cal. 17; 28 Pac. 788. The cor- poration is not a necessary party defend- ant, although the suit by the plaintiff is, in reality, in behalf of the corporation. Beach v. Cooper, 72 Cal. 99; 13 Pac. 161; Neall V. Hill, 16 Cal. 145; 76 Am. Dec. 508. This section (§14 of the Practice Act) does not apply to an action brought by one for himself and in behalf of others, to re- move a cloud from a title, and for an in- junction, where the right sought to be en- forced is not general and common to all. Gibbons v. Peralta, 21 Cal. 629. Where a creditor of one class sues for the benefit of all creditors similarly situated, the cred- itors of another class cannot claim the benefit of the action; and thus, where a judgment creditor sues, and provision is inserted in the judgment for the relief of other judgment creditors, it will include only such as were judgment creditors at the time the action was commenced, and will not include such as were creditors at large, without judgment at that time, who became judgment creditors after the entry of such judgment. Baines v. West Coast Lumber Co., 104 Cal. 1; 37 Pac. 767; Von Schmidt v. Huntington, 1 Cal. 55. A creditor may sue the stockholders of a cor- poration on their liability as stockholders, for the benefit of all the creditors. Baines V. Babcock, 95 Cal. 581; 29 Am. St. Rep. 158; 27 Pac. 674; 30 Pac. 776. In an action to compel a reconveyance of real property, alleged to have been secured by conspiracy and fraud, all persons who have participated in the alleged fraud, and all persons claiming an interest in the prop- erty through or by means of the alleged fraudulent transactions, may be joined as parties defendant. Raynor v. Mintzer, 67 Cal. 159; 7 Pac. 431. A suit by one per- son for the partition of real estate, for the benefit of all having a community of inter- est in the proi)erty, has the effect to stop the running of the statute of limitations as to all. Adams v. Hopkins, 144 Cal. 19; 77 Pac. 712. Where a partner sues alone, and no objection is made, either by de- murrer or answer, he may recover the whole amount due the partnership (Wil- liams v. Southern Pacific Co., 110 Cal. 457; 42 Pac. 974); the reason for this rule be- ing, that the interest of the partner ex- tends to the entire demand, and payment to one partner discharges the debtor's lia- bility to the firm, and the recovery by one partner has the same effect. Williams v. Southern Pacific Co., 110 Cal. 457; 42 Pac. 974; Andrews v. Mokelumne Hill Co., 7 Cal. 330; McCord v. Seale, 56 Cal. 262; Webb V. Trescony, 76 Cal. 621; 18 Pac. 796; Weinreich v. Johnston, 78 Cal. 254; 20 Pac. 556; Baxter v. Hart, 104 Cal. 344; 37 Pac. 941. In a suit by one partner, making the other defendant because he refuses to join in the action, the recovery must be entire for the whole injury; the law will not tolerate the division of a joint right of action. Nightingale v. Scannell, 6 Cal. 506; 65 Am. Dec. 525. A member of a re- ligious corporation may prosecute an action for the benefit of himself and all the other members of the association, to prevent a wrongful exchange of creed or denomina- tion, or the diversion of the property. Baker v. Ducker, 79 Cal. 365; 21 Pac. 764. One member of a voluntary association may sue for all the members. Gieske v. Anderson, 77 Cal. 247; 19 Pac. 421; Baker V. Ducker, 79 Cal. 365; 21 Pac. 764; Flor- ence V. Helms, 136 Cal. 613; 69 Pac. 429. A member of a voluntary association, elected the treasurer thereof, may main- tain a suit in behalf of himself and other members of the association, except the former treasurer thereof, to compel him to pay over the funds in his hands belonging to the association, which properly belong in the custody of the treasurer, and which the former treasurer, on demand, refused to pay over. Gieske v. Anderson, 77 Cal. 247; 19 Pac. 421. An action may be main- tained under this section, where the plain- tiffs allege that they are members of an association, and that the action is prose- cuted in behalf of the association and all the members thereof. Florence v. Helms, 136 Cal. 613; 69 Pac. 429. CODE COMMISSIONERS' NOTE. 1. Joint as- sociations composed of many individuals. In cases of joint associations which consist of a great many individuals, and when it would be very inconvenient or almost impossible to join them, one or more may sue or defend for all. See Von Schmidt v. Huntington, 1 Cal. 55 ; Gorman V. Russell, 14 Cal. 531. 2. Action by stockholder against corporation and certain trustees for negligence on part of trustees. An action was brought to compel an account and obtain a settlement of the affairs of a corporation. Tlie plaintiff was a stockholder, and the corT>oration and four of the trustees were made defendants. It was alleged that these trus- tees were the owners of stock sufiScient to enable §383 PARTIES TO CIVIL ACTIONS. 248 them to control the business of the company, and various acts of fraud and mismanagement were charged against them in the complaint. It was de- cided that a stockholder could maintain an action in equity for an account (Angell and Ames on Cor- porations. § 312: Robinson v. Smith, 3 Paige Ch. 222: 24 Am. Dec. 212): and that where no ob- jection was interposed, that all the stockholders were not made parties, the trustees and corpora- tion could be sued alone, and made the only par- ties. The trustees will be compelled to make good any loss occasioned by their negligence or improper conduct. See Neall v. Hill, 16 Cal. 151; 76 Am. Dec. 508. 3. Decree in action brought by one for himself and on behalf of others. Where an action is brought by one of several persons, claiming title from a common source, in his own behalf, and in behalf of all others interested in the same man- ner as himself, to set aside a deed executed to others by the same grantor, under whom plaintiff claims, on the ground of fraud, the parties named in the complaint, for whose benefit the qotion is brought, are entitled to the benefit of the decree declaring the deed fraudulent. Hurlbutt v. Butenop, 27 Cal. .50. 4. Partner suin? for injury to partnership property and making copartner a defendant. When one partner siit's for an injury to the part- nership property, and makes his copartner a de- fendant for want of his consent to join as plain- tiff, the recovery must be entire for the whole injury. The law will not tolerate a division of a joint right of action into several actions. The whole cause of action must be determined in one, and thus avoid a multiplicity of suits. In such a ease, the partner recovering is liable to account to his copartner defendant, and the latter is in- terested immediately in the event of the suit. Nightingale v. Scannell, 6 Cal. 509: 65 Am. Dec. 525. But this case did not decide that such a nonjoinder of the niaintiffs would be nermitted under the code. The question was not raised. Id. 5. Section applies only to suits in equity. It was held that this section was intended to apply to suits in equity, and not to actions at law. Andrews v. Mokelumne Hill Co., 7 Cal. 333. § 383. Plaintiff may sue in one action the different parties to commercial paper or insurance policies. Persons severally liable upon the same obliga- tion or instrument, including the parties to bills of exchange and promissory notes, and sureties 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 the obligation or instrument upon which they are severally liable. Where the same person is insured by tM^o or more insurers separately in respect to the same subject and interest, such person, or the payee under the policies, or the assignee of the cause of action, or other successor in interest of such assured or payee, may join all or any of such insurers in a single action for the recovery of a loss under the several policies, and in case of judgment a several judgment must be rendered against each of such insurers according as his liability shall appear. action upon the contract; and this rule applies to undertakings, obligations, and promises of all possible descriptions. More- ing V. Weber, 3 Cal. App. 14; 84 Pac. 220. This section is in the exact language of § 15 of the Practice Act, which latter sec- tion was said to be in derogation of the common law, which required that one or all, and not an intermediate number, should be sued. Stearns v. Aguirre, 6 Cal. 176; People V. Love, 25 Cal. 520. This section jiermits all or any of the persons severally liable upon the same obligation or instru- ment, including the parties to bills of ex- change and promissory notes, to be joined as defendants; but where the promise is separate and distinct, the promisors cannot be joined. Thomas v. Anderson, 58 Cal. 99. The object of this section is solely the avoidance of a multiplicity of actions. Loustalot v. Calkins, 120 Cal. 688; 53 Pac. 258. By § 15 of the Practice Act, the com- mon-law rule that one or all, and not any intermediate number, may be sued, was changed; and, under that section, a plain- tiff could, at his election, sue one or more, or all of the persons severally liable upon the same obligation or instrument. People V. Love, 25 Cal. 520. The joinder of all the defendants in a complaint does not Judgment for or against one or more of several parties. See post, §§ 414, 578, 579. Legislation § 383. 1. Enacted March 11, 1873, in the e.xact language of Practice Act, § 15 (New York Code, § 120), and then read: "Persons severally liable upon the same obligation or in- strument, including the parties to bills of ex- change and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff." 3. Amended by Stats. 1897, p. 19, to read: "Persons severally liable upon the same obliga- tion or instrument, including the parties to bills of exchange and promissory notes, and sureties 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, con- cerning or affecting the obligation or instrument upon which they are severally liable." 3. Amended by Stats. 1903, p. 203. Parties liable upon the same obligation. A j>laintiff may, at his election, sue one or more, or all, of the persons severally liable upon the same obligation or instrument (Stearns v. Aguirre, 6 Cal. 176; People v. Evans, 29 Cal. 429; Hurlbutt v. N. W. Spaulding Saw Co., 93 Cal. 55; 28 Pac. 795; Kurtz V. Forquer, 94 Cal. 91; 29 Pac. 413; London etc. Bank v. Smith, 101 Cal. 415; 35 Pac. 1027; Kreling v. Kreling, 118 Cal. 413; 50 Pac. 546; Slater v. McAvov, 123 Cal. 437; 56 Pac. 49); but where the lia- bility is joint, all must be united, in an 249 JOINDER — PARTIES NUMEROUS AND INTEREST COMMON. §382 prevent the plaintiff from going to trial before Boine of them have been served. People V. Evans, 29 Ca). 429; Reed v. Cal- derwood, 22 C'al. 463; People v. Love, 25 Cal. 520. Where a sheriff executed two attachments upon the same property, which was claimed by a third person, and each of the attaching creditors e.xecutcd to the sheriff an indemnifying bond, the liability of the attaching creditors is several, and not joint, and each bond must be sued on as an independent obligation. White v. Fratt, 13 Cal. 521. The joinder of co-de- fendants is at the option of the plaintiff. People V. Love, 25 Cal. 520; Powell v. Powell, 48 Cal. 234; Heppe v. Johnson, 73 Cal. 265; 14 Pac. 833; Kurtz v. Forquer, 94 Cal. 91; 29 Pac. 413; Sacramento v. Dunlap, 14 Cal. 421; People v. Hartley, 21 Cal. 585; 82 Am. Dec. 758. Joinder of sureties. The sureties on a several obligation may be sued alone, at the election of the plaintiff. London etc. Bank v. Smith, 101 Cal. 415; 35 Pac. 1027. The joinder of an indorser and the maker of a promissory note is permissible, untler this section (Loustalot v. Calkins, 120 Cal. 688; 53 Pac. 258; Hubbard v. University Bank, 125 Cal. 684; 58 Pac. 297); and each one who writes his name upon the note is a party to it; and, from its original charac- ter, each party to it is an original under- taker. Eiggs v. Waldo, 2 Cal. 485; 56 Am. Dec. 356. From the earliest judicial his- tory of this state, makers and indorsers of negotiable promissory notes have been joined as parties defendant, and no ques- tion as to the correctness of the practice has ever been suggested. Loustalot v. Calkins, 120 Cal. 688; 53 Pac. 258; Pierce V. Kennedy, 5 Cal. 138; Ford v. Hendricks, 34 Cal. 673; Jones v. Goodwin, 39 Cal. 493; 2 Am. Rep. 473; Fessenden v. Summers, 62 Cal. 484; Young v. Miller, 63 Cal. 302. The distinction at common law, and in most of the states, between guarantor and surety has been done away with by our Civil Code, and the guarantor has been practically reduced to the footing of a surety, and has less protection than the indorser; there is this distinction to be observed, however: the obligation of the surety arises out of the instrument, while that of the guarantor is separate and apart from it; the guarantor becomes liable im- mediately upon the failure of his principal to perform (except in case of guaranty of collectibility), but this liability grows out of such failure to perform, and not out of the instrument; the surety may be joined with his f)rincipal, under this section, but it is thought the guarantor cannot; it is barely possible, but not probable, that a case may arise where the guarantor's lia- bility arises out of the instrument. Car- man v. Plass, 23 N. Y. 286. Where an administrator gives two bonds, one on his qualification as administrator and the other ui)on a sale of real estate, the conditions and the sureties on each bond being the same, the sureties are properly joined as co-defendants, having assumed a common burden. Powell v. Powell, 48 Cal. 234; licppe V. .Johnson, 73 Cal. 265; 14 Pac. 833. The sureties on a bond to sell real estate, given b}' a deceased administrator, the es- tate being unadministered, are proper par- ties defendant in an action to recover moneys realized from the sale of such real estate (Slater v. McAvoy, 123 Cal. 437; 56 Pac. 49) ; and they are the jiroper parties to make the settlement (People v. Jenkins, 17 Cal. 500; Slater v. McAvoy, 123 Cal. 437; 56 Pac. 49); and also in an account- ing against a deceased guardian. Zurfluh V. Smith, 135 Cal. 644; 67 Pac. 1089; Rei- ther V. Murdoch, 135 Cal. 197; 67 Pac. 784. Joinder of insurers. Where two insur- ance companies insure a building against loss, both uniting in the policy for sepa- rate amounts, and the loss occurs within the policies, the two companies are sev- erally liable upon the same obligation or instrument, and may be joined as co-de- fendants, at the option of the plaintiff. Bernero v. South British etc. Ins. Co., 65 Cal. 386; 4 Pac. 382; Blasingame v. Home Ins. Co., 75 Cal. 633; 17 Pac. 925. What judgment must be rendered. Where a plaintiff sues, jointly, two or more de- fendants on a joint and several contract or obligation, one of whom defaults, and judgment is taken against him on such de- fault, this releases the other defendants. Stearns v. Aguirre, 6 Cal. 176. Joinder of husband and wife. See note ante, § 382. CODE COMMISSIONERS' NOTE. 1. Plaintiff may elect whicli one or v/hat number of many persons severally liable he will sue. This sec- tion changes the common-law rule, that one or all, and not any intermediate number, may be sued. Under this section, a plaintiff may, at his elec- tion, sue one or more, or all the persons severally liable, upon the same obligation or instrument. People V. Love. 25 Cal. 526; Stearns v. Aguirre, 6 Cal. 183; see also People v. Frisbie, 18 Cal. 402; Lewis v. Clarkin, 18 Cal. 399. 2. Judgment may be for or against one of sev- eral defendants, and otherwise as to the other defendants. See §§ 578, 579, post. Lewis v. Clarkin, 18 Cal. 399; People v. Frisbie, 18 Cal. 402. 3. Indorsers. When jointly, and not severally, liable. A note was payable to A, and, previously to its delivery to the payee, was indorsed by B and C. These parties were accommodation in- dorsers. .\.n indorsement was made by two per- sons, upon an agreement with each other, that they would each become surety if the other would, or in other words, that they would be- come sureties together. It wag decided that the indorsers were guarantors (see facts), and were jointly, and not severally, liable to payee, etc. Brady v. Reynolds, 13 Cal. 31. 4. There must be express words to create a several liability. See Chitty on Contracts, n. 96 ; 1 Chitty's Pleading, p. 41 ; Brady v. Reynolds. 13 Cal. 32. 5. Judgment against one is bar to action against other parties on a joint contract. A judgment against one on a joint contract of sev- eral is a bar to an action asrainst the others. Smith v. Black, 9 Serg. & R. (Pa.) 142; 11 Am. Dec. 686; Ward V. Johnson, 13 Mass. 148. When the cause of action is joint, and not joint and §§ 384, 385 PARTIES TO CIVIL ACTIONS. 250 several, the entire cause of action is merged in the judgment. See also Pierce v. Kearney, 5 Hill (N. Y. ), 86; Taylor v. Claypool, 5 Blackf. 557; Bradv v. Reynolds, 13 Cal. 33. 6. Administrator not joined with survivor on several contract. In cases of joint and several contracts, an administrator cannot be joined with the survivor, for one is charged de bonis testa- toris, and the other de bonis propriis. Hum- phreys V. Crane. 5 Cal. 173. 7. Judgment in suit on joint and several bond. In an action upon a joint and several bond, where all the persons who sign it are made defe;idants in the complaint, the plaintiff may go to trial, if he elects so to do, before all the defendants are served, and may dismiss as to some of the de- fendants, and take judgment against the others. People v. Evans, 29 Cal. '429. 8. When a bond is joint, and not several. A bond in this form: Know all men, That we, A, as principal, and B, C, and D, as sureties, are bound unto the people in the several sums af- fi.xed to our names, viz.: B, in the sum of ten thousand dollars; C, in the sum of five thousand dollars; D, in the sum of three thousand dollars, etc., "for the which payment well and truly to § 384. Tenants in common, etc., may sever in bringing or defending ac tions. All persons holding as tenants in common, joint tenants, or copar- ceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. be made we severally bind ourselves, our heirs, etc., and signed and sealed by the obligors, is held to be an instrument embracing several dis- tinct obligations, each of which is a joint obliga- tion of the principal and one surety, and not joint and several. People v. Hartley, 21 Cal. 585 ; 82 Am. Dec. 758. 9. Suit on separate indemnifying bonds for the same attached property. .\ sheriff seized goods on two attachments, for different plaintiffs. The plaintiffs in the attachment suits executed to the sheriff separate indemnifying bonds. It was de- cided that there is no joint liability between the plaintiffs to the sheriff. Each bond must be sued on as an independent obligation. White v. Fratt, 13 Cal. 521. 10. Action on note secured by mortgage. The maker executes and delivers to the same person a promissory note, and a mortgage to secure the same, and this person indorses the note and as- signs the mortgage to a third person, who brings an action on the note and to foreclose the mort- gage. It was held that the indorser and maker of the note were properly joined as defendants. Eastman v. Turman, 24 Cal. 379. Co-claimants, united as plaintiffs. Ante, | 381. Legislation § 384. Enacted March 11, 1873; based on Stats. 1867-68, p. 62. Joinder of tenants in common. Co-ten- ants may sue alone or jointly touching matters affecting common property or es- tate. Clark V. Huber, 20 Cal. 196; Tou- chard v. Keyes, 21 Cal. 202; Goller v. Fett, 30 Cal. 481; Reynolds v. Hosmer, 4,5 Cal. 616; Morenhaut v. Wilson, .52 Cal. 263; Himes v. Johnson, 61 Cal. 259; Moulton v. McDermott, 80 Cal. 629; 22 Pac. 296; Lee Chuck V. Quan Wo Chong & Co., 91 Cal. 593; 28 Pac. 45; Kimball v. Tripp, 136 Cal. 631; 69 Pac. 428; Miller v. Kern County, 137 Cal. 516; 70 Pac. 549; Harlow v. Stan- dard Improvement Co., 145 Cal. 477; 78 Pae. 1045. A co-tenant of the plaintiff is not a necessary party in an action for the wrongful diversion of water from a ditch and lands owned by the plaintiff and others. Himes v. Johnson, 61 Cal. 259. Co-dis- tributees are tenants in common; and one tenant, suing alone, may recover the entire tract of land from an intruder. Moulton V. McDermott, 80 Cal. 629; 22 Pac. 296. The personal representative of a deceased co-tenant may join with the surviving co- tenants. Tou'chard v. Keyes, 21 Cal. 202; Goller V. Fett, 30 Cal. 481; Reynolds v. Hosmer, 45 Cal. 616. One co-tenant can- not recover all the rents and profits, even as against a trespasser (Clark v. Huber, 20 Cal. 196; Muller v. Boggs, 25 Cal. 175; Lee Chuck V. Quan Wo Chong & Co., 91 Cal. 593; 28 Pac. 45); but, under an agreement apportioning the rents and profits, whereby one co-tenant is to receive them every alternate six months, perhaps a co-tenant, in a proper action, would be entitled to recover all the rents and profits due for periods allotted to him. Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593; 28 Pac. 45. An heir, as tenant in common, may sue alone, under this section, regarding the subject-matter affecting the common es- tate. Kimball v. Tripp, 136 Cal. 631; 69 Pac. 428. A husband is not a necessary party in an action by his wife to quiet title to her separate property, upon which a homestead has been declared for their joint benefit. Prey v. Stanley, 110 Cal. 423; 42 Pac. 908. Husband and wife may sue jointly as tenants in common, in an action for trespass. Wagoner v. Silva, 139 Cal. 559; 73 Pac. 433. A surviving partner may sue alone regarding the subject-matter of the firm's property. Miller v. Kern County, 137 Cal. 516; 70 Pac. 549. CODE COMMISSIONERS' NOTE. Stats. 1867, p. 62. § 385. Action, when not to abate by death, marriage, or other disability. Proceedings in such case. 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 dis- ability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. 251 ACTION DOES NOT ABATE WHERE CAUSE OF ACTION SURVIVES. §385 In case of any other transfer of interest, the action or proceeding may be continued in the name of the orisjinal party, or the court may allow the per- son to whom the transfer is made to be substituted in the action or proceed- ing. If party die, Judgment against his representa- tivfe must be that he pay in due course of ad- ministration. I'ost, § 1504. Necessity for claiming against estate of de- -ceased. Post. §§ 1493, 1502. Death after verdict or decision, and before Judgment. See post, § 669. Survival of actions. See post, §§ 1582 et seq. Legislation S 385. 1. Enacted March 11, 1873; basfd on Practice Act, § 16 (New York Code, § 16), which read: "An action shall not abate by the death, or other disability of a party; or by the tran.sfer of any interest therein, if the cause of action survive or continue. In case of the death, or other disability of a party, the court, on motion, may allow the action to be con- tinued by or against his representative or suc- cessor in interest. In case of any other transfer of interest, the action 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 substituted in the action." When enacted in 1872, the section read as at present, e.xcept that the words "death or any disability" then xead "death, marriage, or other disability," in both instances. 3. Amended by Code Amdts. 1873-74-, p. 295. Action does not abate, where the cause of action survives. This section is per- missive, and appeals to the discretion of the court (Fay v. Steubenrauclj? 138 Cal. 656; 72 Pac. 156; Emerson v. McWhirter, 128 Cal. 268; 60 Pac. 774); and should re- ceive a liberal construction, with a view to effect its object and promote justice. Plummer v. Brown, 64 Cal. 429; 1 Pac. 703; Crescent Canal Co. v. Montgomery, 124 Cal. 134; 56 Pac. 797. If this section is applicable to the case of a corporation, it does not authorize the continuance of the action against the corporation itself, "but allows the action to be continued only against the "representative or successor in interest" brought in on motion. Crossman v. Vivienda Water Co., 150 Cal. 575; 89 Pac. 335. It applies to the supreme court, except where the code otherwise provides, or where it is evidently applicable only to the trial court. Trumpler v. Trumpler, 123 Cal. 248; 55 Pac. 1008; People v. Mullan, ■65 Cal. 396; 4 Pac. 348. It does not make ■distinctions dependent upon the stages of the action or proceeding. Ex parte Con- naway, 178 U. S. 421; 44 L. Ed. 1134; 20 Sup. Ct. Rep. 951. It does not apply in a ■contest for the purchase of state land, w^hich has been referred to the courts, and where the applicant dies pending the ac- tion. Polk V. Sleeper, 158 Cal. 632; 112 -Pac. 179. In case a corporation, which is .a party, is dissolved, the action may be continued, only as against the representa- ■tive or successor in interest brought in on motion; the remedy is against the di- Tcctors, as trustees, and the stockholders. Grossman v. Vivienda Water Co., 150 Cal. -575, 581; 89 Pac. 335. The substitution of the representative of a deceased person as a party, pending an appeal, should be fol- lowed by a like substitution in the trial court in order properly to determine the responsibility for the costs ui)on appeal. Reay v. Heazelton, 128 Cal. 335; 60 Pac. 977. The court cannot permit a person to be substituted as plaintiff, in place of the then plaintiff, on the ground that the per- son substituted was the real party in in- terest at the commencement of the action. Dubbers v. Goux, 51 Cal. 153. The right of action against a person for wrongful im- prisonment ceases upon his death. Marker V. Clark, 57 Cal. 245. A former applica- tion for a writ of mandate against a city treasurer does not bar an action against the city. Madary v. Fresno, 20 Cal. App. 91; 128 Pac. 340. In an action of eject- ment, brought by a lessee for the benefit of the lessor, the court may, after the ex- piration of the lease, allow the substitu- tion of a plaintiff who has succeeded to the whole title (Cassin v. Nicholson, 154 Cal. 497; 9S Pac. 190); and in an action to determine an adverse claim to real prop- erty, it has power to substitute a special ad- ministrator for the general administrator as a partv defendant. McNeil v. Morgan, 157 Cal. 373; 108 Pac. 69. A transfer, by the defendant, of attached real estate, pending the principal suit, is not such a transfer as entitles the transferee to be substituted as a party defendant. Ander- son V. Sehloesser, 153 Cal. 219; 94 Pac. 885. If a suit on assigned claims, commenced in a state court, is transferred to a Fed- eral court, but the cause of action is trans- ferred to the plaintiff's assignor, the action may be continued either in the name of the original party or in that of the trans- feree. Davis V. Eawhide Gold Mining Co., 15 Cal. App. 108; 113 Pac. 898. An action abates upon a showing of the institution and pendency of a prior action between the same parties upon the same subject- matter. Fresno Planing Mill Co. v. Man- ning, 20 Cal. App. 766; 130 Pac. 196. If a husband and wife were properly joined as plaintiffs in the first instance, a per- sonal representative for the husband may be substituted upon his death, pending suit. Gomez v. Scanlan, 155 Cal. 528; 102 Pac. 12. If, pending an action to foreclose a mortgage given to secure a note, the note and mortgage are assigned, and are subse- quently distributed by a decree of distribu- tion in the estate of the assignee, the dis- tributee, as a successor in interest, may be substituted as plaintiff in the foreclosure suit. Blinu Lumber Co. v. McArthur, 150 Cal. 610; 89 Pac. 436. Where, pending a suit commenced in this state, against a §385 PARTIES TO CIVIL ACTIONS. 252 non-resident defendant, the property in- Aolved is transferred to a resident of this state, the death of the original defendant, subsequently to such transfer, does not confer upon the transferee any right of substitution as representative of the origi- nal defendant. Anderson v. Schloesser, 153 Cal. 219; 94 Pac. 885. Does not abate by death. On the death of a party in this state, whatever property he has vests immediately, by operation of law, in his heirs, subject to the lien of the administrator to pay the debts of the es- tate. Beckett v. Selover, 7 Cal. 215; 68 Am. Dec. 237; Updegraff v. Trask, IS Cal. 458; Meeks v. Hahn, 20 Cal. 620. When- ever, by reason of the death of a defend- ant, the case becomes such that execution cannot be legally issued, an attachment must of necessity cease, whether judgment has been procured or not, in an action in which attachment issued and was levied. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49; afSrmed in Hensley v. Morgan, 47 Cal. 622; Ham v. Cunningham, 50 Cal. 365. The common-law rule, that a personal right of action dies with the person, is inapplicable where the plaintiff dies after a judgment in his favor, which has not been vacated. Fowden v. Pacific Coast S. S. Co., 149 Cal. 151; 86 Pac. 178. This section does not have the effect of abating an action against a corporation after its legal death, by a forfeiture of its charter for the non-pay- ment of its license taxes, when construed with § 10a of the act of June 13, 1906 (Stats. Extra Sess. 1906, p. 22), providing that the trustees may maintain or defend any action or proceeding then pending, in behalf of or against the corporation, and § 400 of the Civil Code. Lowe v. Supreme Court, 165 Cal. 708; 134 Pac. 190. A judg- ment against a person, who is dead at its rendition, is valid, until reversed or set aside by some competent judicial author- ity, and it cannot be collaterallv attacked. Tyrrell v. Baldwin, 67 Cal. 1; 6 Pac. 867. Where a party dies after verdict, but be- fore judgment, judgment will be entered in accordance with the verdict (Judson v. Love, 35 Cal. 463), and where a party dies after judgment, but before notice of appeal is filed, the appeal will be dismissed. Jud- eon V. Love, 35 Cal. 463; Shartzer v. Love, 4 Cal. 93. Where, pending an appeal, the defendant dies, and the court, on plain- tiff's motion, substitutes his executor, no- tice must be served on the- executor; and if notice is served, and the executor does not appear and answer, nor adopt the answer of the testator as his own, and judgment is subsequently entered in tho testator's name and in his favor, this judgment is not one in favor of the executor; for, as to him, the case has never been tried, and the judgment a nullity. McCreerv v. Ever- ding, 44 Cal. 284. When a husband and wife sue to recover the homestead, and the wife dies without issue, pending suit, the husband cannot recover. Gee v. Moore, 14 Cal. 472. An assignee or grantee is the legal representative of the assignor or grantor, and, as such, is entitled to de- fend in his name. Plummer v. Brown, 64 Cal. 429; 1 Pac. 703; Malone v. Big Flat Gravel Mining Co., 93 Cal. 384; 28 Pac. 1063; Trumpler v. Trumpler, 123 Cal. 2*48; 55 Pac. 1008. An action to foreclose a mortgage does not abate on the death of the defendant, pending suit, but survives against the estate. Hibernia Sav. & L. Soc. V. Wackenreuder, 99 Cal. 503; 34 Pac. 219; Union Sav. Bank v. Barrett, 132 Cal. 453; 64 Pac. 713, 1071. Upon the appointment of a personal representative of the defend- ant, the plaintiff has the same right to pro- ceed against him as he would have against the original defendant. Union Sav. Bank V. Barrett, 132 Cal. 453; 64 Pac. 713, 1071. If, pending an action on a note and mort- gage, they are assigned, and the assignee dies, whereupon his estate is distributed to his widow, she may, as a successor in in- terest, be properly substituted as plaintiff in the foreclosure suit. Blinn Lumber Co. V, Me Arthur, 150 Cal. 610; 89 Pac. 436. Effect of transfer of interest. The last clause of this section has reference to the transfer of interest before judgment; after judgment, others succeeding to interests in the property affected take the same sub- ject to t^e judgment, and with all of its protection. Emerson v. McWhirter, 128 Cal. 268; 60 Pac. 774. The last clause of this section is permissive, and the discre- tion of the court, in making the order, is to be exercised in view of all the attend- ing circumstances. Emerson v. McWhirter,. 128 Cal. 268; 60 Pac. 774; Hentig v. John- son, 12 Cal. App. 423; 107 Pac. 582. An as- signee for the benefit of creditors may be substituted as a party, in place of the as- signor (Wilson V. Baker, 64 Cal. 475; 2 •Pac. 253); but the assignee need not be substituted: he may prosecute or defend in the name of his assignor. Stewart v. Spaulding, 72 Cal. 264; 13 Pac. 661. The court rendering a judgment has control of such judgment, and authority to direct the issuance and execution of process there- under, and to determine who is entitled thereto. Eowe v. Blake, 112 Cal. 637; 44 Pac. 1084; McAuliffe v. Coughlin, 105 Cal. 268; 38 Pac. 730. Where the court, in the exercise of such jurisdiction, makes an order which involves the determina- tion that an assignee was entitled to have process, such determination is conclusive, without any express finding that such as- signee was the owner of the judgment, or that the application was upon notice to the judgment plaintiff. Rowe v. B]ake. 112 Cal. 637; 44 Pac. 1084; Hibernia Sav. & L. Soc. V. Lewis, 117 Cal. 577; 47 Pac. 602; 49 Pac. 714. Against a collateral attack,. it will be presumed that the application for such order was regularly made upon notice to the parties interested, and that 253 EFFECT OF TRANSFER OF INTEREST — SUBSTITUTION OF PARTIES. § 385 the court, upon competent evidence, found and determined the ownership of the judg- ment, and who was entitled to have process for its execution. Grim v. Kessing, 89 Cal. 478; 23 Am. St. Eep. 491; 26 Pac. 1074; Caruthers v. Hensley, 90 Cal. 559; 27 Pac. 411. The conveyance by the plaintiff of the demanded premises, or a portion thereof, pending the action, does not necessarily defeat the suit (Moss v. Shear, 30 Cal. 467; Barstow v. Newman, 34 Cal. 90); and the transfer of the real estate under at- tachment in the action is not such a trans- fer of an interest in the action as will give the transferee the right to be substituted as a party (Anderson v. Schloesser, 153 Cal. 219; 94 Pac. 885), but the acquirement of a pledge by the pledgee, pending an action on the note secured thereby, gives the pledgee the right to be substituted. Merced Bank v. Price, 9 Cal. App. 177; 9S Pac. 383. The use of the name of a per- son as a nominal plaintiff is not improper, where such person has been authorized to act. Cobb v. Doggett, 142 Cal. 142; 75 Pac. 785. A purchaser pendente lite, on giving notice of such purchase, may be substituted in place of the original party, under this section, and thus conserve his rights, or he may permit the action to con- tinue in the name of the grantor, but, in either event, he is equally bound by the judgment with his grantor (Hibernia Sav. & L. Soc. v. Lewis, 117 Cal. 577; 47 Pac. 602; 4<)' Pac. 714; Hohn v. Pauly, 11 Cal. App. 724; 106 Pac. 266); and he has con- trol of the action, both in the court be- low and in the supreme court. Trumpler v. Trumpler, 123 Cal. 248; 55 Pac. 1008; People V. Mullan, 65 Cal. 396; 4 Pac. 348. Where the parties to an action have dis- posed of all their interest to a third party, and thereafter, upon appeal, by fraudu- lent means, procure a reversal, the supreme court will recall the remittitur, stay the proceedings of the court below, and assert its jurisdiction over the appeal, on the ground that its jurisdiction cannot be di- vested by such fraud and irregularity. Trumpler v. Trumpler, 123 Cal. 248; 55 Pac. 1008; Rowland v. Kreyenhagen, 24 Cal. 52; Vance v. Pena, 36 Cal. 328; Han- son V. McCue, 43 Cal. 178; Bernal v. Wade, 46 Cal. 640; Holloway v. Galliac, 49 Cal. 149; People v. McDermott, 97 Cal. 247; 32 Pac. 7; In re Levinson, 108 Cal. 450; 41 Pac. 483; 42 Pac. 479. One who has no further interest in the matter in litiga- tion has no right to interfere with the control of the suit respecting it. Harlan Douglas Co. V. Moncur, 19 Cal. App. 177; 124 Pac. 1053. A grantee, pendente lite, unless substituted as plaintiff, acquires no right which he can enforce in an action, or under the judgment. Walsh v. Soule, 66 Cal. 443; 6 Pac. 82. Where the plaintiff, pendente lite, parts with his interest, the action may be continued in his name, un- less the transferee makes an application to be substituted. Camarillo v. Fenlon, 49 Cal. 202. The court should permit the sub- stituted party to file an amended com- plaint; otherwise he may be seriously em- barrassed on the trial. Northern Railway Co. V. Jordan, 87 Cal. 23; 25 Pac. 273. Substitution may be had of a new corpo- ration, in place of the old one, in a pro- ceeding to condemn lands under the right of eminent domain. California Central Ry. Co. V. Hooper, 76 Cal. 404; IS Pac. 599. In an action to enforce a lien, a grantee, pendente lite, of the land in controversy, claiming under the defendant, may appear and move to vacate a judgment and open a default. McKendrick v. Western Zinc Mining Co., 165 Cal. 24; 130 Pac. 865. Substitution of parties. An assignee or transferee cannot acquire any right which can be enforced, in his own name, in an action, or under the judgment, unless sub- stituted. Walsh V. Souie, 66 Cal. 443; 6 Pac. 82. Parties substituted take up the controversy in the condition in which they find it, and subject to the terms of stipu- lations theretofore entered into by the original parties. De Temple v. Alexander, 53 Cal. 3. Where the property in contro- versy is conveyed pendente lite, and no substitution is asked for, the action pro- ceeds in the name of the original plaintiff, and no application to or order by the court is necessary. Malone v. Big Flat Gravel Mining Co., 93 Cal. 384; 28 Pac. 1063. The practice in this state is well settled, on the death of a party to an action, to allow the substitution of his legal representa- tive, upon the suggestion of the death, and on an ex parte motion showing the ap- pointment and qualification of the admin- istrator. Taylor v. Western Pacific R. R. Co., 45 Cal. 323; Emeric v. Alvarado, 64 Cal. 529; 2 Pac. 418; Kittle v. Belleaarde, 86 Cal. 556; 25 Pac. 55; Campbell v. West, 93 Cal. 653; 29 Pac. 219, 645; De Leonis V. Walsh, 140 Cal. 175; 73 Pac. 813. Sub- stitution of parties is not such an amend- ment of the pleadings as is required to be made on notice, or to be engrossed other- wise than entered in the minutes of the court. Kittle v. Bellegarde, 86 Cal. 556; 25 Pac. 55; Farrell v. Jones, 63 Cal. 194; Brock V. Martinovich, 55 Cal. 516. An allegation of the representative capacity of a substituted executor, filed by leave of the court, in connection with a showing that the action was continued in his name, is a sufficient showing of the appointment and qualification of the legal representa- tive. Campbell v. West, 93 Cal. 653; 29 Pac. 219, 645. A different party cannot be substituted as plaintiff, on the ground that he was the real party in interest when the action was commenced. Dubbers v. Goux, 51 Cal. 153. Where it is admitted in open court, by all the parties, that, under the will of the decedent, the claim in the action has been decreed by the pro- bate court to the legatee named in tha 385 PARTIES TO CIVIL ACTIONS. 25# will, the court may make an order substi- tuting such distributee as plaintiff. Cock- rill V. Clyma. 98 Cal. 123; 32 Pac. 888. The substitution "in case of any other transfer of interest," must be made by supplemental complaint or answer. Camp- bell V. West, 93 Cal. 653; 29 Pac. 219, 645; Ford V. Bushard, 116 Cal. 273; 48 Pac. 119. In case of assignment, the supplemental complaint should set out such assignment, which is an issuable fact, and if denied, its proof, as in all other cases of assign- ment, is vital to a recovery. Ford v. Bush- ard, 116 Cal. 273; 48 Pac. 119; Murdock v. Brooks, 38 Cal. 596; Eead v. Buffum, 79 Cal. 77; 12 Am. St. Rep. 131; 21 Pac. 555. A purchaser pendente lite need not be sub- stituted as a party plaintiff. Stufflebeem v. Adelsbach, 135 Cal. 221; 67 Pac. 140; Sears v. Ackerman, 138 Cal. 583; 72 Pac. 171. "Where an action is commenced by the general guardian of an infant, and the infant subsequently appears by a guardian ad litem, this is substitution, and not in- tervention; the guardian ad litem takes the case in the state in which he finds it. Temple v. Alexander, 53 Cal. 3. Where there is an action pending to enforce a lien against real property, and the defend- ant owner conveys his interest by a deed which is recorded, and the action is there- after continued, in the name of the origi- nal defendant, to judgment, the grantee may move, in his own name, to set the judgment aside, and appeal from an order denying the motion. Malone v. Big Flat Gravel Mining Co., 93 Cal. 384; 28 Pac. 1063; Plummer v. Brown, 64 Cal. 429; 1 Pac. 703; People v. MuUan, 65 Cal. 396; 4 Pac. 348. The right of a grantee, as legal representative, cannot be enforced in his own name, unless he is substituted as plaintiff. Walsh v. Soule, 66 Cal. 443; 6 Pac. 82. The assignor may settle a claim, where the assignee is not substituted. Hogan v. Black, 66 Cal. 41; 4 Pac. 943. As between the assignor and the assignee, the assignment transfers the interest of the plaintiff in the subject-matter of the action, but the assignee cannot avail him- self of the benefit of the same against the defendant, without notifying him of the assignment, or without having himself sub- stituted for the plaintiff. Hogan v. Black, 66 Cal. 41; 4 Pac. 943; Doll v. Anderson, 27 Cal. 248. A part interest may be as- signed, under this section; and the assignee must be joined as plaintiff with the as- signor (Cerf V. Ashlev, 68 Cal. 419; 9 Pac. 658; Cramer v. Tittle', 79 Cal. 332; 21 Pac. 750) ; and the rights of such grantee and his protection, under this section, are the same as though he acquired the entire in- terest (Crescent Canal Co. v. Montgomery, 124 Cal. 134; 56 Pac. 797); and he may move the court to set aside a judgment en- tered by stipulation of the original de- fendants to the action, in fraud of his rights. Cramer v. Tittle, 79 Cal. 332; 21 Pac. 750; Crescent Canal Co. v. Mont- gomery, 124 Cal. 134; 56 Pac. 797. Where- the plaintiff transfers his interests to others, and the action is prosecuted in his name, without a substitution of parties or a change of attorneys of record, a stipu- lation for dismissal by the original plain- tiff is a flagrant breach of good faith, and an order of dismissal, entered on such- stipulation, should be promptly vacated. Walker v. Felt, 54 Cal. 386. Where, pend- ing litigation, the defendant transfers his. interest to a third person, and subsequently enters into a fraudulent stipulation with the plaintiff, allowing him to take judg- ment, such judgment will be set aside, on motion of the purchaser. Plummer v. Brown, 64 Cal. 429; 1 Pac. 703; People v. Mullan, 65 Cal. 396; 4 Pac. 348; Crescent Canal Co. v. Montgomery, 124 Cal. 134; 56 Pac. 797. Where the plaintiff disposes of his interest, the substitution of the trans- feree as plaintiff is a matter in which the defendant is not concerned, and in which he cannot move; it concerns only the origi- nal plaintiff and the transferee; as against the defendant, the former has a right to remain in court until the case is disposed of. Hestres v. Brennan, 37 Cal. 385. The defendant can take advantage, by supple- mental answer, of such transfer. Moss v. Shear, 30 Cal. 467; Barstow v. Newman,. 34 Cal. 90; Hestres v. Brennan, 37 Cal. 385. The joinder of a transferee in an action to foreclose a mortgage is proper, if not neces- sary. Cerf v. Ashley, 68 Cal. 419; 9 Pae.. 658. Infant heirs succeeding are substi- tuted, ex parte, on motion. Emeric v. Al- varado, 64 Cal. 529; 2 Pac. 418. The want of substitution of a representative does not render the judgment of the appellate court void. Phelan v. Tyler, 64 Cal. 80; 2S Pac. 114. The death of an interested party in no way aft'ects an appeal, and it will proceed without a substitution of his per- sonal representative. Davies & Henderson Lumber Co. v. Gottschalk, 81 Cal. 641; 22: Pac. 860. A representative should be sub- stituted in all cases, under this section, where the action does not abate on the- death of the partv. Union Savings Bank v. Barrett, 132 Cal. 453; 64 Pac. 713, 1071; Daneri v. Gazzola, 139 Cal. 416; 73 Pac. 179; De Leonis v. Walsh, 140 Cal. 175; 73; Pac. 813. The substitution of heirs and representatives is authorized by this sec- tion (Hibernia Sav. & L. Soc. v. Wacken- reuder, 99 Cal. 503; 34 Pac. 219), which may be made on an ex parte suggestion and proof of death, without any amend- ment of the complaint, though all subse- quent proceedings should be in the name- of the substituted party. Kittle v. Belle- garde, 86 Cal. 556; 25 Pac. 55. Personal representatives are not proper parties to. be substituted, where the decedent had transferred his interest; the action must. either be continued in decedent's name by the transferee, or the latter substituted.- 255 EFFECT OF DISABILITY OF PARTY. §385 Tuffree v. Stearns "Ranches Co., 124 Cal. 306; 57 Pac. 69; Daneri v. Gazzola, 139 Cal. 416; 73 Pac. 179; Blinn Lumber Co. .V. Mc Arthur, 150 Cal. 610; 89 Pac. 436. Where the defendant transfers his interest, pendente lite, to one having notice of the pendency of the action, the transferee may elect to be substituted as defendant or to defend in the name of the original defend- ant, who thereupon becomes merely a nomi- nal party, and upon his death his repre- sentatives cannot be substituted. Tuffree V. Stearns Eanchos Co., 124 Cal. 306; 57 Pac. 69. Where the respondent dies pend- ing an appeal, his personal representatives must be substituted in the supreme court; substitution in the trial court, after ap- peal taken, is not noticed by the supreme court. Lyons v. Roach, 72 Cal. 85; 13 Pac. 151. An action in ejectment survives the death of the defendant, pendente lite, and the representative of the deceased may be substituted. Barrett v. Birge, 50 Cal. 655. Where the personal representatives are substituted, the judgment does not bind the transferee, and does not protect the adverse party. Daneri v. Gazzola, 139 Cal. 416; 73 Pac. 179. Effect of disability of party. An appeal may be prosecuted by a bankrupt or his assignee, under this section, though the bankruptcy was adjudicated before the taking of the appeal. O'Neil v. Dough- erty, 46 Cal. 575. An assignee for the benefit of creditors may be substituted as a party, in the place of an assignor in a pending action. Wilson v. Baker, 64 Cal. 475; 2 Pac. 253. Where one of the plain- tiffs in an action is adjudged an insolvent during its pendency, his assignee need not be substituted in his place. Stewart v. Spaulding, 72 Cal. 264; 13 Pac. 661. Upon the expiration of the term of a public offi- cer, the court, upon the proper suggestion of the fact, will order the substitution of his successor as defendant. Ex parte Tinkum, 54 Cal. 201; Jordan v. Hubert, 54 Cal. 260, SutTivorship of actions. See note 53 Am. Rep. 525. Effect of death of party. See note 29 Am. St. Rep. 816. Substitution of personal representative. See note 50 Am. St. Rep. 742. Effect of death of party on action for death by wrongful act. See note 70 Am. St. Rep. 685. Survival of action for death by wrongful act after death of wrongdoer. See notes 12 Ann. Cas. 462; 11 L. R. A. (N. S.) 1157. Survival of action for death by wrongful act after death of beneficiary. See uoie 17 Ann. Cas. 773. Whether statutory action for wrongful death survives to personal representative of original beneficiary. See note 24 L. R. A. (N. S.) S44. CODE COMMISSIONERS' NOTE. 1. Construc- tion of lection. This rule as to right of a third person, under our statute, to be made a party, where he is directly intere.'^ted in the subject- matter in litigation, as it existed upon this sub- ject, both at law and in chancery, has been al- tered by the Practice Act of this state, by the sixteenth and seventeenth sections of which it is provided that, in case of the transfer of any in- terest in the action durinq; the prndcncy, the suit may be continued in the name of the oiinj- n.il party, or the court may allow the person to whom the transfer is made to be substituted in the action. Again, it is provided that the court shall order parties to be brought in, if thore can- uot be a complete determination of the action without prejudice to their interests. Brooks v. Hager. 5 Cal. 282. 2. Judgment for or against a party deceased. See § 669, post; see also Judson v. Love, 35 CaL 464. 3. Transfer of cause of action in cject-jient. The transfer, by the plaintiff in ejecimpnt, of the dnmandtd premises, pending the action, is a transfer of the cause of action, within the pro- visions of this section, and the artion m.iy he continued in the name of the original plaintiff. Mo.ss V. Shear, 30 Cal. 468. 4. Transfer of plaintiff's Interest in cause of action. If the plaintiff has conveyed the de- manded premises, pending ejectment, the court, by the consent of both the plaintiff and vendee, may make an order continuing the action in the name of the original plaintiff. Moss v. Shear, 30 Cal. 46R. 5. Plaintiff may recover after sale of land. If the action is continued, as above stated, in the name of the original plaintiff, notwithstanding the premises have been transferred by him, he may recover judgment for both possession and the rents and profits. Moss v. Shear, 30 Cal. 46S. 6. Death of one of several respondents. If one of several respondents died before notice of appeal was filed, a motion to dismiss the appeal as to him must be granted. Shartzer v. Love, 40 Cal. 96; Judson v. Love, 35 Cal. 463. 7. Husband cannot recover homestead on der.th of wife. If the wife die after an action has been commenced by herself and husband for the home- stead, a recovery by the husband is defeated, al- though his right to recover existed at the time when the action was begun. Gee v. Moore, 14 Cal. 472, overruling Taylor v. Hargous, 4 Cal. 273; 60 Am. Dec. 606: Pools v. Gerrard, 6 Cal. 71; 65 Am. Dec. 481; Revalk v. Kraemer, 8 Cal. 73; 68 Am. Dec. 304. 8. Death of party to a divorce suit abates ac- tion. Partitioner's community property. A sup- plemental decree in the divorce suit, after death of husband, under which the plaintiff claims to be the owner of the whole land sued for. was, in our judgment, null and void, as against the heirs at law. By the death of the husband, the suit abated, for all the purposes of further judicial action therein, on the subject of partitioning the common property, and the court had no jurisdic- tion to adjudge that the property should be sold and the proceeds divided, without a revivor as to the heirs. No such revivor was had, and the in- terest of the heirs was, therefore, unaffected by the supplemental decree, and the transactions un- der it. Ewald V. Corbett, 32 Cal. 499. 9. Where, during action in name of husband and wife, they are divorced. An action begun by husband and wife in their joint names, does not abate in consequence of a divorce. Calderwood V. Pyser, 31 Cal. 335. 1,0. Conveyance of demanded land, pending suit. The conveyance of demanded uremises, by the plaintiff in ejectment, pending the suit, to a person not a party to the action, does not neces- sarily defeat the action. Moss v. Shear, 30 Cal. 468 ; Barstow v. Newman, 34 Cal. 90. 11. Continuation of action in name of execu- tor on death of party. What is a sufficient sug- gestion of death of principal, and a revival of the cause in the name of the executor. See Greg- ory V. Haynes, 21 Cal. 443. 12. Death of appellant after argument of his case on appeal. The death of an appellant after argument of his case upon appeal, does not con- stitute any ground for delaying a decision or de- parting from the ordinary course of procedure, except as to the entry of the judgment which may be rendered. The entry should be of a dav anterior to the appellant's death. King v. Dunn 21 Wend. (N. Y.) 253; Campbell v. Mesier. 4 Johns. Ch. 335; 8 Am. Dec. 570; Miller v. Gunn, 7 How. Pr. 159; Black v. Shaw. 20 Cal. 69. 13. Death of appellant previous to argument on appeal. The rule is different from that above 386 PARTIES TO CIVIL ACTIONS. 256 stated if the death occurs previous to the argu- ment; in that event, further proceedings can only be liad upon leave given after suggestion of the death is made. Black v. Shaw, 20 Cal. 69. 14. Defendants cannot change plaintiffs. The substitution of one person as plaintiff in place of another, in case of a transfer of the cause of action, is a matter which the defendant cannot move. It concerns only the plaintiff, or the per- son to whom the transfer is made. If the plain- tiff desires to take advantage of the transfer for any cause, he must do so by supplemental an- swer. As against a defendant, a plaintiff has a right to stay in court till his case has been tried. Hestres v. Brennan, 37 Cal. 385. 15. Mode of showing the death of a party and substitution of his legal representatives. The death of a party, pendente lite, should be made known by suggestion of that fact to the court, and the action continued by order of the court against the representative oif the party deceased, of which he must be duly notified before he can be affected by further proceedings in the action. Judson ▼. Love. 35 Cal. 464. 16. Suggestion of the death of party. When it may be made. It is regular and proper to suggest the death of a party to an action in any court, and at any stage of the proceedings. And the death of a party occurring before the appeal taken may be shown in this court bv affidavit of the fact. Judson v. Love, 35 Cal. 464. 17. Ceath of the defendant during the pen- dency of an action. In an action to recover judg- ment on a promissory note, the suggestion of the death of the defendant, and the substitution of his administrator, and the continuance of the suit against him, subject the proceedings to such rules of the Probate Act as are applicable to proceedings for the collection of claims against an estate of a deceased person. Myers ▼. Mott, 29 Cal. 359; 89 Am. Dec. 49. 18. Judgment against administrators enforcing attachment lien. If the defendant dies after tha service of summons and the levy of an attach- ment on his property, and before judgment, and the administrator is substituted, and the action continued against him, the court cannot render a judgment enforcing the lien of the attachment by a sale of the attached property, and an applica- tion of the proceeds to the satisfaction of the demand. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49. 19. Purchase of property pendinf; an action to recover possession of it. One who buys land during the pendency of an action to recover pos- session of it, in wliich his grantor is a defend- ant, may thereafter continue the defense in the name of his gr.intor, or may cause himself to be substituted in his place, lilastick v. Thorp, 29 Cal. 444. § 386. Another person may be substituted for the defendant. Conflicting claims, how made. 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 makes against him, and without 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 depositing 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, make the order. And whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting 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 dis- charged 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 independent of one another. Legislation § 386. 1. Enacted March 11, 1872; based on Practice Act, § 658, as amended by Stats. 1854, Redding ed. p. 72, Kerr ed. p. 102, § 70, which had the word "due" before "notice to such person," and with this omission the sec- tion was enacted in 1872, ending with the words "make the order." 2. Amended by Stats. 18S1, p. 19, (1) chan- ging the word "such" before "contract" and be- fore "property" from the words "the same," and (2) adding the rest of the section after the •words "make the order." 3. Amendment by Stats. 1901, p. 126; un- constitutional. See note ante, § 5. Intervention by substituticn of defend- ant. A party sued upon a debt, contract, or claim, upon which another has or claims a demand, or right to receive the money, may, before answer, file an affidavit set- ting: up such facts, and have an order made .thereon, substituting such claimant as de- fendant in his place or stead; and by pay- ing the money into the court he may be relieved of all further liability. Pfister V. Wade, 69 Cal. 133; IQ Pac. 369; Howell V. Stetefeldt Furnace Co., 69 Cal. 153; 10 Pac. 390; Cross v. Eureka Lake etc. Canal Co., 73 Cal. 302; 2 Am. St. Rep. SOS; 14 Pac. 885; San Francisco Sav. Union v. Long, 123 Cal. 107; 55 Pac. 70S; 137 Cal. 68; 69 Pac. 687; Orient Ins. Co. v. Peed, 81 Cal. 145; 22 Pac. 484; Woodmen of the Word V. Eutledge, 133 Cal. 640; 65 Pac. 1105; Kimball v. Eichardson-Kimball Co., Ill Cal. 3S6; 43 Pac. 1111. A person seek- ing to bring in a party to litigate his claim, must show that such person claims an interest in the property, or has made a deuiund therefor. McGorray v. Stockton 257 CONFLICTING CLAIMS — SUBSTITUTION. §386 Snv. & L. Soc, 131 Cal. 321; 63 Pac. 479. The order should specifically state the nature and character of the claim of the defendant. Warnock v. Harlow, 96 Cal. 298; 31 Am. St. Rep. 209; 31 Pac. 106. There must be claims to be litigated, or an order for intervention cannot be made. Cahoon v. Levy, 4 Cal. 243. Interpleader, wliere there are conflicting claims. The second clause of this section makes no provision for an order permitting the plaintiff in an action of interpleader to pay the money into court or to deliver the property. Kimball v. Richardson-Kim- ball Co., Ill Cal. 386; 43 Pac. 1111; Fox V. Sutton, 127 Cal. 515; 59 Pac. 939. This section applies to conflicting claims of at- torneys to a particular fuud for their fees (Sullivan v. Lusk, 7 Cal. App. 1S6; 94 Pac. 91, 92), and in an action to compel defend- ants to litigate among themselves their claims to certain moneys in the hands of plaintiff. Water Supply Co. v. Sarnow, 6 Cal. App. 586; 92 Pac. 667. Where a case is a proper one for an interpleader, and the plaintiff's complaint is sufficient, an order will be made discharging him from liability to the conflicting claimants, and requiring them to litigate their several claims among themselves. Interlocking Stone Co. v. Scribner, 19 Cal. App. 344; 126 Pac. 178. Until an order is obtained therefor, a party cannot, of his own voli- tion, relieve himself of responsibility by volunta,rily placing the property or money in the hands of the clerk, which would not then, in any proper sense, be in the cus- tody of the law. Kimball v. Richardson- Kimball Co., Ill Cal. 386; 43 Pac. 1111. An interpleader will be sustained against persons who claim, legally or equitably, the same thing, debt, or duty, whenever it is necessary for the protection of one "who has incurred no independent liability to any of the claimants and who does not himself claim an interest in the matter. Pfister V. Wade, 56 Cal. 43; Sullivan v. Lusk, 7 Cal. App. 186; 94 Pac. 91, 92. Where one of two claimants of the same fund litigates it and secures judgment, the other, standing by, cannot deprive hira of the fruits of his labor, by com- pelHng him to litigate again his right to the fund. Wilson v. Heslep, 4 Cal. 300. Defendants in interpleader are persons having adverse interests. McDevitt v. .Sullivan, 8 Cal. 592. Notice of the claim to the debtor is necessary, in order to make him liable to the claimant. Hogan V. Black, 66 Cal. 41; 4 Pac. 943. It is^ an inflexible rule, that the thing to which the parties make adverse claims must be one and the same thing, or in other words, the claims must be identical; there may be cases in which all the fund (where the plaintiff sustains to it the mere relation of a stockholder or trustee) may not be claimed by each of the defendants; but the defendants must assert adverse claims 1 Fair. — 17 to all and every pnrt of it. Pfister v. Wade, 56 Cal. 43. An action in inter- l)leader cannot be employed to determine disputed claims between the plaintiff aud the defendants; the amounts claimed by the defendants, or any of them, must be admitted by the plaintiff, and he must be a mere uninterested stakeholder; and where one of them claims more than the plaintiff admits to be due, the interpleader is defeated: the general rule is, that an interpleader cannot be invoked, where the plaintiff denies the claim; but a denial, made in another action, does not defeat an interpleader subsequently filed. Orient Ins. Co. v. Reed, 81 Cal. 14.5; 22 Pac. 484. It is essential to the right of interpleader, that the person standing in the position of a stakeholder is ignorant of the rights of the different claimants of the fund, debt, duty, or property owing by him or in his possession, or that there is some doubt as to whom he shall deliver the property, pay the debt, or render the duty, so that he cannot safely do so to auy one of them. Pfister v. Wade, 56 Cal. 43. The pleadings. Defects in matter of formal allegation may be cured by amend- ment. Orient Ins. Co. v. Reed, 81 Cal. 115; 22 Pac. 484. A demurrer must be made or an objection must be raised to the com- plaint, or any objection to the p]aintiff"s right of action will be deemed waived. San Francisco Sav. Union v. Long, 123 Cal. 107; 55 Pac. 708; Woodmen of the World V. Eutledge. 133 Cal. 640; 65 Pac. 110.3. The plaintiff may dismiss the proceeding at any time, upon the payment of costs, where no counterclaim has been fiiled or affirmative relief asked. Kaufman v. Su- perior Court. 115 Cal. 152; 46 Pac. 904. Order of substitution. An interlocutory order, requiring the defendants to come in and litigate their conflicting claims, should not be made until it has first been deter- mined that the plaintiff has a right to bring the action. San Francisco Sav. Union V. Long, 123 Cal. 107; 55 Pac. 708. Per- sons brought in in invitum, under this section, are entitled to a change of place of trial to the county in which they re- side. Howell v. Stetefeldt Furnace Co., 69 Cal. 153; 10 Pac. 390. Liability of plaintiff. Where an inter- locutory order is made, bringing in the conflicting claimants, and dismissing the plaintiff, he ceases to be a narty to the action, and is not responsible for costs. San Francisco Sav. Union v. Long, 137 Cal. 68; 69 Pac. 387. It is not necessary that the plaintiff' in a bill for interpleader shall ofl'er to pay the costs of a previous suit by one of the defendants against him: such costs are taxable in that action. Orient Ins. Co. v. Reed, 81 Cal. 145; 22 Pac. 4S4. Conllictins claimants. A corporation paying the money into court, and comply- ing with the provisions of this section, ism PARTIES TO CIVIL ACTIONS. 258 8 Cal. 592; Warnock v. Harlow, 96 Cal. 298; 31 Am. St. Rep. 209; 31 Pac. 166. In such cases the court may make an order directing the tenant to pay the amount of the rents sti]nilated in the lease into court, and thus absolve the tenant from liability to any of the parties. Schluter v. Harvey, 65 Cal. 158; 3 Pac. 659. Interpleader by a judgment debtor is not allowable, under this section. Collins v. Augell, 72 Cal. 513; 14 Pac. 135. CODE COMMISSIONERS' NOTE. This is § 658 of the Practice Act, taken from its place and inserted here because it relates to parties to actions. When tenant finds there are adverse claimants to property he has rented. When there are ad- verse claimants to the property, a tenant siiould tile a bill of interpleader, making them parties thereto, and offering to pay the rents into cimrt to abide its ultimate decision. McDevitt v. Sulli- van, 8 Cal. 592. may have the claimants to dividends sub- stituted in its place as defendants, and be relieved of all responsibility. Cross v. Eureka Lake etc. Canal Co., 73 Cal. 302; 2 Am. St. Rep. SOS; 14 Pac. 885. An insur- ance company sustaining a loss, involving conflicting claims to the money payable thereunder, may file an action in inter- pleader, and have an arder directing it to pay the money into court, and thus be discharged from further liabilitv. Orient Ins. Co. V. Reed, 81 Cal. 145; 22" Pac. 484. A tenant may file a complaint in inter- pleader, making all the adverse claimants to the rents parties defendant, and pay the same into court, to abide the ultimate decision (McDevitt v. Sullivan, 8 Cal. 592; Schluter v. Harvey, 65 Cal. 158; 3 Pac. 659) ; also on other claims, where there is privity of estate between the claimants and the landlord. McDevitt v. Sullivan, § 387. Intervention, when it takes place, and how made. At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may inter- vene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding be- tween other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding 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 parties who have appeared, who may answer or demur to it W'ithin ten days from the service thereof, if served wdthin the county wherein said action is pending, or within thirty days if served elsewhere. Eminent domain. Intervention in. Post, § 1246. Legislation § 387. 1. Enacted March 11, 1873; based on Practice Act, §§ 659-661 (Stats. 1854, Redding ed. p. 73, Kerr ed. p. 102, §§ 71-73), which read: "§ 71 [§ 659]. Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the suc- cess of either of the parties, to the action or an interest against both. An intervention takes place, when a third person is permitted to be- come a party to an action between other per- sons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant." "§ 72 [§660 J. A third person may intervene either before or after issue has been joined in the cause." "§73 [§661]. The intervention shall be by petition or complaint, filed in the court in which the action is pending, and it must set forth the grounds on which the intervention rests; a copy of the petitions or complaint shall be served upon the party or parties to the action against whom anything is demanded, who shall answer it as if it were an original complaint in the action." When enacted in 1872, the section read the same as when amended by Code Amdts. 1873-74, p. 296, down to the words "action or proceeding," the section ending, after these words, with the clause, "who may answer it as if it were an original complaint." 2. Amended by Code Amdts. 1873-74, p. 296, and then read: "Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an in- terest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claim- ing what is sought by the complaint, or by unit- ing with the defendant in resisting the claims of the plaintiff, or by demanding anything ad- versely 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 par- ties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint." 3. Amendment Dy Stats. 1901, p. 127; un- constitutional. See note ante, § 5. 4. Amended by Stats. 1907, p. 703; the code commissioner saying, "The amendment consists in adding the words, 'within ten days from the service thereof, if served within the county wherein said action is pending, or within thirty days if served elsewhere,' thus removing any ambiguity respecting the time within which the complaint in intervention must be answered." Interest in the matter In litigation. Any one having an interest in the matter in litigation may be permitted to inter- vene before the trial of the action or the hearing of the proceedings. Leonis v. Bis- cailuz, 101 Cal. 330; 35 Pae. 875, "To 259 INTERVENTION — WHEN TAKES PLACE — UOW MADE. §387 intervene" is to ai)pear as a party, to pro- tect some right, or an interest affected thereby, in a pending action, carried on by other persons, wliere the intervener has not the right to institute or carry on the proceeding himself. Estate of Ghio, 15" Cal. 552; 137 Am. St. Rep. 145; .S? L. K. A. (N. S.) 549; I US Pac. 516. Where the court allows a party to intervene, the plaintiff cannot afterwards, by a dismissal of the action as to some of the defendants, deprive such party of the right to a judg- ment on his claim, unless the court sets aside the order allowing intervention. Townsend v. Driver, 5 Cal. App. 581; 90 Pac. 1071. The interest entitling a person to intervene must be one created by a claim to the demand in a suit, or a claim to or lien upon the property which is the subject of the litigation. Horn v. Volcano Water Co., 13 Cal. 62; 73 Am. Dee. 569; Eobinson v. Crescent City Mill etc. Co., 93 Cal. 316; 28 Pac. 950. The code does not attempt to state what or how great the interest shall be, in order to give the right to intervene; any interest is suffi- cient. Coffey V. Greenfield, 55 Cal. 382; Kimball v. Richardson-Kimball Co., Ill Cal. 386; 43 Pac. 1111; Dennis v. Kolm, 131 Cal. 91; 63 Pac. 141. If one has any inter- est in the subject-matter of the litigation, or in the success of some of the parties, he has the right to intervene (Coffey v. Green- field, 55 Cal. 382; Moran v. Bonvnge, 157 Cal. 295; 107 Pac. 312); but the interest must be direct, in the subject-matter of the action (Brooks v. Hager, 5 Cal. 281; Yuba County v. Adams, 7 Cal. 35; Davis V. Eppiuger, 18 Cal. 378; 79 Am. Dec. 184; Coburn v. Smart, 53 Cal. 742), either for or against one of the parties, or ailversely to both (Stieh v. Dickinson, 38 Cal. 608; Moran v. Bonynge, 157 Cal. 295; 107 Pac. 312); and it must be of such immediate and direct character that he will either gain or lose by the direct legal operation and effect of the judgment. Horn v. Vol- cano Water Co., 13 Cal. 62; 73 Am. Dec. 569. In an action of accounting between partners, the firm cretlitors may join in an intervention to share in a fund in the hands of one of the partners, the pro- ceeds of a fraudulent sale of firm property (Grossini v. Perazzo, 66 Cal. 545; 6 Pac. 450); but an attaching creditor of an in- dividual partner's interest in the partner- ship has no such interest in proceedings to wind up the affairs of the partnership as entitle him to intervene. Isaacs v. Jones, 121 Cal. 257; 53 Pac. 793, 1101. A creditor, by garnishment, may intervene in an action and set up his rights, under this section. Dore v. Dougherty, 72 Cal. 232; 1 Am. St. Rep. 48; 13 Pac. 621. Exe- cution and attachment creditors may in- tervene to defeat the lien of a prior at- tachment (Horn V. Volcano Water Co., 13 Cal. 62; 73 Am. Dec. 569; Davis v. Ep- idnger, 18 Cal. 378; 79 Am. Dec. 184; Speyer v. Ihmels, 21 Cal. 280; 81 Am. Dec. 157; McComb v. Reed, 28 Cal. 281; 87 Am. Dec. 115; Coghill v, Marks, 29 Cal. 673; Coffey V. GretMifield, 55 Cal. 382); as also may one who has procured a garnishment. Kimball v. Richaral plar-e of business is located. Cohn v. Central Pacific R. R. Co., 71 Cal. 488; 12 Pac. 49S. The defendant corporation cannot require a change of the place of trial to the county where its prin- cipal place of business is located, merely because it is the place of its residence; for the constitution gives to the plaintiff the right to sue the corporation in any of the counties therein referred to: 1. Where the contract is made; 2. Where it is to be performed; 3. Where the obligation or lia- bility arises; 4. Where the breach occurs; and 5. In the county where the princi- pal place of business is situated; and the option thus given includes more than the bare right to choose the county where the complaint shall be filed in the first in- stance; it confers also upon the plaintiff the right to prosecute such action in the county where it is commenced, unless the place of trial is changed for some other reason than that of the residence of the defendant. Miller & Lux v. Kern County Land Co., 134 Cal. 5S6; 66 Pac. 856; and see also Lewis v. South Pacific Coast R. R. Co., 66 Cal. 209; 5 Pac. 79; Fresno Nat. Bank v. Superior Court, 83 Cal. 491; 24 Pac. 157; Trezevant v. W. R. Strong Co., 102 Cal. 47; 36 Pac. 395; Ivey v. Kern County Land Co., 115 Cal. 196; 46 Pac. 926; Brown v. San Francisco Sav. Union, 122 Cal. 648; 55 Pac. 598; C. E. \Vhitney & Co. V. Sellers' Commission Co., 130 Cal. 188; 62 Pac. 472; Bank of Yolo v. Sperry Flour Co., 141 Cal. 314; 65 L. R. A. 90; 74 Pac. 855. The joinder of other defend- ants, in an action against a corporation, is a waiver by the plaintiff of his right to have the action tried in the counties desig- nated by the constitution; and the proper place of trial must be determined by the provisions of the code. Brady v. Times Mirror Co., 106 Cal. 56; 39 Pac. 209; Grif- fin etc. Co. V. Magnolia etc. Fruit Cannery Co., 107 Cal. 378; 40 Pac. 495; Miller & Lux V. Kern County Land Co., 134 Cal. 586; 66 Pac. 856; Aisbett v. Paradise Mountain Mining etc. Co., 21 Cal. App. 267; 131 Pac. 776. A foreign corporation may be sued in any county in the state; and having no residence in any county in the state, it cannot demand transfer on the ground of residence. Thomas v. Placer- ville etc. Mining Co., 65 Cal. 600; 4 Pac. 641. A municipal corporation resides in the county wherein its territory lies, within the meaning of this section, and may de- mand that the trial be held in the county of its residence. Buck v. Eureka, 97 Cal. 135; 31 Pac. 845. Proper county. The "proper county" is the county in which actions are required to be tried, "subject to the power of the court to change the place of trial" by §§ 392, 393, 394, 395, ante. Cook v. Pender- gast, 61 Cal. 72; Paige v, Carroll, 61 Cal. 215. Jurisdiction. Generally, the jurisdiction of the court is not affected by the fact that the action was not commenced in the proper county (Herd v. Tuohy, 133 Cal. 55; 65 Pac. 139; Miller & Lux v. Kern County Land Co., 140 Cal. 132; 73 Pac. 836) ; but actions to recover realty must 283 PERSONAL AND TRANSITORY ACTIONS. §396 te commenrod in the county where the property is situateii, othorvviso the court is without jurisiliction, and the case must be dismissed; change of place of trial is not the proper remedy, under such circum- stances (Urton V. Woolsey, 87 Cal. 38; 25 Pac. 154; Fritts v. Camp, 94 Cal. 393; 29 Pac. 867; Pacific Yacht Club v. Sau- salito Bay Water Co., 98 Cal. 4S7; 33 Pac. 322; Waters v. Pool, 130 Cal. 136; 62 Pac. 385; Herd v. Tuohy, 133 Cal. 55; 65 Pac. 139), and a motion to tiismiss for want of jurisdiction is not waived by the subse- quent filing of a demurrer, answer, or de- mand for a change of venue. Fresno Nat. Bank v. Superior Court, 83 Cal. 491; 24 Pac. 157. Where an action to procure the cancellation of agreements relating to land situated in several counties is commenced in one of such counties, the defendant can- not, by disclaiming any interest in the land situated in such county, demand a change of the place of trial to the county of his residence, in which part of the land is situated. Pennie v. Visher, 94 Cal. 323; 29 Pac. 711. Where a new county is created after the commencement of an action to enforce a lien upon real estate, the court is not divested of jurisdiction, if such real estate is situated in the new county. Security Loan etc. Co. v. Kauff- man, 108 Cal. 214; 41 Pac. 467. Personal and transitory actions. If the •complaint be regarded as stating two sepa- rate causes of action, upon one of which the defendant would be entitled to a change of venue, but not upon the other, it should be construed most strongly against the plaintiff, and the defendant's demand for a change of venue should be granted. Ah Fong v. Sternes, 79 Cal. 30; 21 Pac. 381; Brady v. Times Mirror Co., 106 Cal. 56; 39 Pac. 209; Griffin etc. Co. ■V. Magnolia etc. Fruit Cannery Co., 107 Cal. 378; 40 Pac. 495. Conditions exist- ing at the time of the appearance, so far as the pleadings are concerned, determine the proper county for the trial of personal actions; the dismissal of the action against a co-defendant, who did not join in the demand, after demand and motion have been made, cannot confer the right to a change. Remington Sewing Machine Co. V. Cole, 62 Cal. 311; Ah Fong v. Sternes, 79 Cal. 30; 21 Pac. 381. The fact that some of the defendants are non-residents of the state does not deprive the other defendants of the right to have the case tried in the county in which they, or some of them, reside at the commencement of • the action. Banta v. Wink, 119 Cal. 7S; 51 Pac. 17. All actions for the recovery of money must be tried in the county where the defendant resides, unless he directly or impliedly consents to a trial elsewhere. State v. Campbell, 3 Cal. App. 602; 86 Pac. 840. An action for fraud in the sale of stock is personal and transitory, and not within this section. Krogh v. Pa- cific Gateway etc. Co., 11 Cal. App. 237; 104 Pac. 698. The place for commencing the action is not necessarily the proper county for the trial. Hancock v. Burton, 61 Cal. 70; Warner v. Warner, 100 Cal. 11; 34 PaQ. 523; Duffy v. Duffy, 104 Cal. 602; 38 Pac. 443; Staacke v. Bell, 125 Cal. 309; 57 Pac. 1012. If the case is not one of those mentioned in §§ 392, 393, and 394, ante, the residence of the defendant is the proper county for the trial; and if the action has been commenced elsewhere, it is the right of the defendant to have the place of trial changed to the proper county: the statute is peremptory, and the court has no discretion in the matter. Watkins V. Degener, 63 Cal. 500; McFarland v. Mar- tin, 144 Cal. 771; 78 Pac. 239; Loehr v. Latham, 15 Cal. 418; Smith v. Smith, 83 Cal. 572; 26 Pac. 356; Hennessy v. Nicol, 105 Cal. 138; 38 Pac. 649; Thurber v. Thur- ber, 113 Cal. 607; 45 Pac. 852; Booker v. Aitken, 140 Cal. 471; 74 Pac. 11; Schilling V. Buhne, 139 Cal. 611; 73 Pac. 431. The county of the residence of one proper and necessary defendant is a proper county for the trial. Hirschfeld v. Sevier, 77 Cal. 448; 19 Pac. 819; McKenzie v. Barling, 101 Cal. 459; 36 Pac. 8; Hearne v. De Young, 111 Cal. 373; 43 Pac. 1108; Greenleaf v. Jacks, 133 Cal. 506; 65 Pac. 1039; Quint v. Dimond, 135 Cal. 572; 67 Pac. 1034; Modoc County v. Madden, 136 Cal. 134; 68 Pac. 491. The consent of resident defend- ants to a change to a county which would be the proper county as to the other de- fendants were they not joined, does not make it obligatory upon the court to order the transfer. Hirschfeld v. Sevier, 77 Cal. 448; 19 Pac. 819; Greenleaf v. Jack, 135 Cal. 154; 67 Pac. 17. One involuntarily substituted as the solo defendant in an action is entitled to a change of the place of trial to the county of his residence, not- withstanding the failure of the original de- fendant to demand such a change. Howell V. Stetefeldt Furnace Co., 69 Cal. 153; 10 Pac. 390. An association of persons, al- though not formally a corporation, may be sued in the county where its liability arose. Kendrick v. Diamond Creek etc. Mining Co., 94 Cal. 137; 29 Pac. 324. Executors sued upon a claim against the estate of the decedent, in th-e county in which the estate is being administered, but who re- side in another county, are entitled, upon proper motion, to a change of venue to the county of their residence, where no counter-motion is made that the case be retained for the convenience of witnesses, and no facts are shown in reply to the motion. Thompson v. Wood, 115 Cal. 301; 47 Pac. 50. A change of place of trial cannot be demanded on the ground of resi- dence, in an action taken to the superior court by appeal or transfer from a jus- tice's court. Gross v. Superior Court, 71 Cal. 382; 12 Pac. 264; Luco v. Superior Court, 71 Cal. 555; 12 Pac. 677. Where §397 PLACE OF TRIAL OF CIVIL ACTIONS. 28^ the pla,intiff unites in the same action a local cause of action with one that is transitory, the defendant is entitled to have the' action tried in the county of his residence, and also where the principal ob- ject of the action is the adjustment of questions personal in character; an action must be wholly local in its nature, to en- title it to be tVied in a county other than that of the residence of the defendant; the plaintiff cannot, by writing in his com- plaint matters which form the subject of a personal action with matters which form the subject of a local action, compel the defendant to have both actions tried in a county other than that in which he resides. Smith V. Smith, 88 Cal. 572; 26 Pac. 356; Warner v. Warner, 100 Cal. 11; 34 Pac. 523; Bailev v. Cox, 102 Cal. 333; 36 Pac. 650; Booker v. Aitken, 140 Cal. 471; 74 Pac. 11. Notice of application. No notice of the application for a change of venue is re- quired, where there are no contesting affi- davits: the court must make the order for the change, as demanded, regardless of notice. Bohn v. Bohn, 16 Cal. App. 179; 116 Pac. 568. No notice of the application for a change of the place of trial need be given to non-resident co-defendants who have not been served with summons nor made an appearance. Wood v. Herman Mining Co., 139 Cal. 713; 73 Pac. 588. Waiver of right to change of venue. A party may waive his absolute right to a change of the place of trial, and there is § a waiver where the procedure for assert- ing it is not followed. Bohn v. Bohn, 164 Cal. 532; 129 Pac. 981. A defendant, when served with summons, is bound to appear and either demur or answer; and his de- mand for a change of venue can be made only at the time he answers or demurs. Witter V. Phelps, 163 Cal. 655; 126 Pac. 593. A party cannot be deprived of the right of transfer by an amendment of the complaint. Buell v. Dodge, 57 Cal. 645; Bradv v. Times Mirror Co., 106 Cal. 56; 39 Pac. 209. Conflicting evidence. Where the evi- dence as to residence is conflicting, the de- termination of the trial court as to the proper county will not be reversed upon, appeal. Creditors v. Welch, 55 Cal. 469; Hastings v. Keller, 69 Cal. 606; 11 Pac. 218; Daniels v. Church, 96 Cal. 13; 30 Pac. 798; Ludwig v. Harry, 126 Cal. 377; 58 Pac. 858. The court will not go into the merits of the action, on a motion to change the place of trial. O'Brien v. O'Brien, 16 Cal. App. 193; 116 Pac. 696. The affidavit of a party, other than the defendant, oa a motion for a change of venue, in order to be of any value as proof on the question of residence, must state some fact or facts to aid the court in forming a conclusion upon that question. O'Brien v. O'Brien, 16- Cal. App. 103; 116 Pac. 692. Timeliness of motion for change of venue or change of judge made after trial of csuse. See note 8 Ann. (."us. 758. CODE COMMISSIONERS' NOTE. See note to- § 397, post. 397. Place of trial may be changed in certain cases. The court may, on motion, change the place of trial in the f oUowino; cases : 1. When the county designated in the complaint is not the proper county j 2. When there is reason to believe that an impartial 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 there is no judge of the court qualified to act. Appeal from order as to change of venue. Post, of the court, does not affect the jurisdic- tion. White V. Superior Court, 110 Cal. 60; 42 Pac. 480. This section is applicable, in counties having more than one judge, only when no judge is qualified to act. Petition of Los Angeles Trust Co., 158 Cal. 603; 112 Pac. 56. Criminal actions. This section has nO' application to criminal actions. People v. Ebey, 6 Cal. App. 769; 93 Pac. 379. Where county designated is not proper county. The authority given to the court by this section, to change the place of trial when the county designated in the com- plaint is not the proper county, is a limi- tation upon its power, and necessarily im- plies that if the county designated in the complaint is the proper county, the place of trial cannot be changed, except for some good reason authorized by the code. Mc- § 939, subd. 3 Judge, when disqualified. See ante, § 170. Mandamus and prohibition. Controlling action of court on motion to change place of trial by resort to these writs. See post, §§ 1085, 1102. Legislation § 397. 1. Enacted March 11, 1873; based on Practice Act, § 21 (New York Code, § 126), the words "in the action," at the end of subd. 4, being omitted when adopted in 1872, Bubd. 4, then reading, "4. When from any cause the judge is disqualified from acting." 3. Amendment by Stats. 1901, p. 129; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1907, p. 701; the code commis.sioner saying, "Subdivision 4 is so amended that there need not be any change from the place of trial, if there is any" judge v/ithin the county not disqualified from" acting. This was certainly the real legislative intent." Transfer from one department to an- other. A transfer from one department of the same court to another, by order of the presiding judge, in violation of the rules 285 IMPARTIAL TRIAL — WAIVER — CONVENIENCE OF WITNESSES. §397 Farland v. Martin, 144 Cal. 771; 78 Pac. 239. Residence. Conditions cannot be im- posed, where the defencUuit maizes a de- nianti, at the proper time and in the proper manner, for a tduinge of the plai-e of trial to the countv of his residone'e. Ilenuessy V. Nicol, 105 Cal. 138; 38 Pac. (NO. Where impartial trial cannot be had. The place of trial may also be changed on the ground that a fair and impartial trial cannot be had in the county where the action was commenceil. Cook v. Peuder- gast, 61 Cal. 72; Grewell v. Walden, 23 Cal. 165. "Waiver of right. The right to have the cause tried in a particular county is a per- sonal privilege, which the party may waive, either expressly or by impliaation (Tooms V. Randall, 3 Cal. 438; Keyes v. Sanford, 5 Cal. 117; Pearkes v. Freer, 9 Cal. 642; Watts v. White, 13 Cal. 321; Jones V. Frost, 28 Cal. 245; Cook v. Pen- dergast, 61 Cal. 72; Powell v. Sutro, SO Cal. 559; 22 Pac. 308; Warner v. Warner, 100 Cal. 11; 34 Pac. 523; Brady v. Times- Mirror Co., 106 Cal. 56; 39 Pac. 209; Hearne v. De Young, 111 Cal. 373; 43 Pac. 1108; Herd v. Tuohy, 133 Cal. 55; 65 Pac. 139); but in an action concerning real es- tate, a failure to appeal from the first or- der denying the motion for a change, for want of an affidavit of merits, is not a waiver of the right to move again for the transfer of the cause to the proper county (Fritts V. Camp, 94 Cal. 393; 29 x^ac. 867); nor is the filing of a motion to strike out portions of the complaint a waiver of the right to demand a change of the place of trial (Wood v. Herman Mining Co., 139 Cal. 713; 73 Pac. 588); neither is the rijrht waived by amending the demurrer. Pitt- man V. Carsteubrook, 11 Cal. App. 224; 104 Pac. 699. Change for convenience of witnesses. The place of trial may be changed for the convenience of witnesses (Haun v. Robin- son, 162 Cal. 760; 121 Pac. 1132);_and the trial court has a wide discretion in appli- cations on this ground (Pascoe v. Baker, 158 Cal. 232; 110 Pac. 815), and its rulings will not be disturbed, where the affidavits as to residence are conflicting. Bernou v. Bernou, 15 Cal. App. 341; 114 Pac. 1000. The court must grant the change, if the afiSdavits show clearly that the conve- nience of the witnesses will be promoted thereby (Thompson v. Brandt, 98 Cal. 155; 32 Pac. 890; Ivey v. Kern County Land Co., 115 Cal. 196; 46 Pac. 926; C. E. Whitney & Co. V. Sellers' Commission Co., 130 Cal. 188; 62 Pac. 472); and the court may con- sider the relative expense of jiroducing evi- dence; but the affidavits should set forth the particulars regarding such expense (Schilling v. Buhne, 139 Cal. 611; 73 Pac. 431; Miller & Lux v. Kern County Land Co., 140 Cal. 132; 73 Pac. 836); and must show that the witnesses are material ami necessary to the defendant, and must state what is expectelication is a motion, and, under this section, the motion for the change must be made, in addition to the demand and affidavit. Bohn v. Bohn, 164 Cal. 532; 129 Pac. 981. Upon the mo- tion, the question of residence must be decided upon probative facts; these are the facts that should be set forth in the affidavit. Bernou v. Bernou, 15 Cal. App. 341; 114 Pac. 1000. A corporation sued, in a transitory action, in a countj^ other than that of its principal place of business, may insist upon a change of the place of trial. Krogh v. Pacific Gateway etc. Co., 11 Cal. App. 237; 104 Pac. 698. If there are several defendants in a personal action, a non-resident defendant, moving alone, is not entitled to have the place of trial changed to the countj^ of his residence, in the absence of a showing that none of the other defendants are residents of the county in which the action was brought. Donohoe v. Wooster, 163 Cal. 114; 124 Pac. 730. In condemnation proceedings, the place of trial cannot be changed to the place of residence of the defendants. Santa Rosa v. Fountain Water Co., 138 Cal. 579; 71 Pac. 1123, 1136. The right to a change of the place of trial must be deter- mined by the conditions existing at the time of the appearance of the party de- manding the change. Donohoe v. Wooster, 1IJ3 Cal. 114; 124 Pac. 730. When an appeal may be taken. An ap- peal may be taken directly ujmn an order changing or refusing to change the place of trial. Remington Sewing Machine Co. V. Cole, 62 Cal. 311; Broder v. Conklin, 98 Cal. 360; 33 Pac. 211; San .Joaquin Countv v. Superior Court, 98 Cal. 602; 33 Pac. 482 Under the Practice Act, an appeal did not lie from an orp. 95; 93 Pac. 685. Even if no objection is made, a disqualified judge has no right to act, and ought, of his own mo- tion, to decline to sit as a judge. People V. De la Guerra, 24 Cal. 73; Tracy v. Colby, 55 Cal. 67. A judgment, after an improper refusal to grant a change of venue on the ground of the disqualification of the judge, is void, and will be reversed on appeal, "without consideration of its merits (Mever v. San Diego, 121 Cal. 113; 53 Pac. 1128); but jurisdiction is not divested by giving notice of the motion; and if the motion is properly denied, the judgment is not affected thereby. Dakan v. Superior Court, 2 Cal. App. 52; 82 Pac. 1129. By the change of venue granted by a judge who is a party to or interested in the action, juris- diction is conferred upon the court to ■which the transfer is made. Oaklaml v. Hart, 129 Cal. 98; 61 Pac. 779. There is BO presumption that a judge is disquali- fied; whether disqualification exists is a judicial question, to be determined by the tribunal before which it is presented, and the facts establishing it must be set forth by affidavits. Dakan v. Superior Court, 2 Cal. App. 52; 82 Pac. 1129. Nearest and most accessible court. The words "most accessible" mean most accessi- ble from' the court in which the action is pending; and the words "nearest court" 1 Fair. — 19 mean the court nearest that in which the action is pending; but the "most a(;cessi- ble" court may not be the "nearest" court. Anaheim Water Co. v. Jurupa Land etc. Co., 128 Cal. 568; 61 Pac. 80. The deter- mination of this question is a matter within the jurisdiction of the disqualified judge, and an error therein would not ren- der the judgment void. Gage v. Downey, 79 Cal. i40; 21 Pac. 527, 855. In case of the disqualification of a judge, the law selects the judge to try the cause; the dis- qualified judge has no discretion in the selection. Parrish v. Riverside Trust Co., 7 Cal. App. 95; 93 Pac. 685. A judge who is interested in an action or proceeding can only act as directed by law; he cannot transfer the same to a judge of his own selection, nor call in any other judge to try the cause. John Heinlen Co. v. Superior Court, 17 Cal. App. 660; 121 Pac. 293. The provision for a change to another county is applicable, only when all the judges of the county are disqualified, and there is no judge of the court qualified to act. Peti- tion of Los Angeles Trust Co., 158 Cal. 603; 112 Pac. 56. Transfer nlay be compelled. Mandamus will issue to enforce the right of transfer (Livermore v. Brundage, 64 Cal. 299; 30 Pac. 848; Krumdick v. Crump, 98 Cal. 117; 32 Pac. 800) ; and prohibition will issue to restrain a judge from proceeding in the action, where he is disqualified by reason of interest, although the court in which he presides has jurisdiction of the action (North Bloomfield etc. Mining Co. v. Key- ser, 58 Cal. 315; Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Rep. 192; 10 L. R. A. 627; 24 Pac. 121); but the showing of bias and prejudice must be clear, or prohibition will not issue. Dakan V. Superior Court, 2 Cal. App. 52; 82 Pac. 1129. While the motion remains undeter- mined, prohibition will not issue (Chester V. Colby, 52 Cal. 516; Havemeyer v. Su- perior Court, 84 Cal. 327; 18 Am. St. Rep. 192; 10 L. R. A. 627; 24 Pac. 121); and the right to claim a transfer is waived by a subsequent stipulation that the cause may be set for trial at any time that may suit the convenience of the judge called to try the same, and by an appearance before the judge called to preside, without objection, and obtaining leave to file an amended complaint, and arguing the demurrer there- to. Schultz v. McLean, 109 Cal. 437; 42 Pac. 557. By consenting to the calling in of a qualified judge, the party is precluded, from raising the question of irregularity of manner in calling him in, or of his right to hear the cause. Oakland v. Hart, 129 Cal. 98; 61 Pac. 779. Power of disqualified judge. The power of the disqualified judge is limited, so that he may not act at all, except so far as the action may be affected by the arrangement of the calendar of his court for regulation §§ 399, 400 PLACE OF TRIAL OF CIVIL ACTIONS. 290 of the order of 'business, and except to transfer the case to some other court for trial; he has but one thing to do, and it is his duty to do that thing at once; there should be no postponement on account of the absence of the adverse party, no con- tinuances, no time given for the filing of briefs, no holding under advisement, no entertaining of any counter-motion based upon grounds calling for the exercise of judicial discretion. People v. De la Guerra, 24 Cal. 73; Estate of White, 37 Gal. 190; Livermore v. Brundage, 64 Cal. 299; 30 Pac. 848; Krumdiek v. Crump, 98 Cal. 117; 32 Pac. 800; Anaheim Water Co. v. Jurupa Land etc. Co., 128 Cal. 568; 61 Pac. 80. The dismissal of an action involves judicial discretion; and if made by a disqualified judge, it is void. People v. De la Guerra, 24 Cal. 73. A motion for a new trial must be transferred for hearing, where the judge becomes disqualified; the hearing and dis- position of a motion for a new trial amounts to a trial, within the meaning of this sec- tion. Finn v. Spagnoli, 67 Cal. 330; 7 Pac. 746. A cause which the judge is disquali- fied to try may be transferred by him to another department of the same court, in- stead of to the superior court of another county. Petition of Los Angeles Trust Co., 158 Cal. 603; 112 Pac. 56; Kegents of Uni- versity V. Turner, 159 Cal. 541; Ann. Cas. 1912C\ 1162; 114 Pac. 842. A disqualified judge may call in a judge, who is not dis- qualified, to act in his place. Upton v. Upton, 94 Cal. 26; 29 Pac. 411; Paige v. Carroll, 61 Cal. 215. The disqualified judge has no discretion: he must perform the duty imposed by this section (Parrish v. Eiverside Trust Co., 7 Cal. App. 95; 93 Pac. 685) ; and the duty imposed is not satis- fied by simply calling in a judge who is not disqualified. Remy v. Olds, 5 Cal. Unrep. 182; 42 Pac. 239. 'This section applies to a proceeding in eminent domain, where the judge is disqualified for interest. John Heinlen Co. v. Superior Court, 17 Cal. App; 660; 121 Pac. 293. A disqualified judge may arrange the calendar and adjust the order of business, but it has no power to take any preliminary step in the prosecu- tion of a criminal ease. People v. Ehey, 6 Cal. App. 769; 93 Pac. 379. §399. Papers to be transmitted. Costs, etc. Jurisdiction, etc. When an order is made transferring an action or proceeding for trial, the clerk of the court or justice of the peace, must transmit the pleadings and papers therein to the clerk or justice 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 instance the order was made when the action or proceeding was originally commenced in the proper county. In all other cases such costs and fees shall be paid by the plaintitf. The court to which an action or proceeding is transferred has and exercises over the same the like juris- diction as if it had been originally commenced therein. Younglove v. Steinman, 80 Cal. 375; 22 Pac. 189. Costs and fees. One party may pay the costs, and procure the transfer of the papers in the case, where they aie prop- erly chargeable to the other party. Brooks V. Douglass, 32 Cal. 208. The order chan- ging the place of trial does not become void for non-payment of costs. Chase v. Superior Court, 154 Cal. 789; 99 Pac. 355. Before the amendment to this section in 1909, the costs and fees were payable by the party at whose instance the order was made. Modoc County v. Madden, 136 Cal. 134; 68 Pac. 491; Estep v. Armstrong, 69 Cal. 536; 11 Pac. 132. The order changing the place of trial divests the transferring court of jurisdiction, and vests it in the court to which the transfer is made. Chase V. Superior Court, 154 Cal. 789; 99 Pac. 355^ Costs. 1. On removal of criminal action, chargeable against county. See Pol. Code, §§ 4345-4347. 2. On changing place of trial, in justice's court. See post, § 836. Legislation 8 399. 1. Enacted March 11, 1873. 3. Amendpd by Stats. 1909, c. 723. in sen- tence beginning "The costs," adding, after "was made," the words "when the action or proceeding was originally commenced in the proper county. In all other cases such costs and fees shall be paid by the plaintiff." Order of transfer. An order for transfer gives jurisdiction to the court of the county to which the action is transferred; such jurisdiction is not affected by irregularities in the manner of transmitting the papers, and an objection thereto will not be heard for the first time on appeal. People v. Suesser, 142 Cal. 354; 75 Pac. 1093. It is not necessary that the court acting upon the motion in the case, shall have juris- diction by a previous filing of the notice. §400. Proceedings after judgment in certain cases transferred. When 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 291 REAL PROPERTY — CASE TRANSFERRED — DUTY OF CI.ERK. § 400 county in which the real estate, or some portion of it, is situated, the clerk of such court must, after final judirment therein, certify, under his seal of office, and transmit to the corresponding 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 records of the court, briefly designating it as a judgment transferred from court (naming the proper court). Legislation s 400. Enacted March 11, 1873. to the probate Court of another county; Trial of issue in probate. The probate and the result of the trial can be certified court of one county has jurisdiction to to the former court. People v. Almy 46 change the place of trial of an issue of fact Cal. 245. ' §§405,406 MANNER OF COMMENCING CIVIL ACTIONS. 292 TITLE V. MANNER OF COMMENCING CIVIL ACTIONS. § 405. Actions, how commenced. § 406. Complaint, how indorsed. When sum- nio)is may be issued, and how waived. § 407. Summons, how issued, directed, and what to contain. § 408. Manner and time of issuing alias summons. § 409. Notice of the pendency of an action affecting the title to real property. 5 410. Summons, how served and returned. §411. § 412. § 413. § 414. § 415. § 416. Summons, how served. Cases in which service of summons may be by publication. Certificate of resi- dence. Manner of publication. Proceedings where there are several de- fendants, and part only are served. Proof of service, how made. When jurisdiction of action acquired. § 405. Actions, how commenced. Civil actions in the courts of this state are commenced by filing a complaint. complaint was ever filed, the defendant, on an appeal taken by him, is estopped to deny that it was duly filed. Mahlstadt v. Blanc, 3i Cal. 577. The filing of the com- plaint operates to stop the running of the statute of limitations, only as to those who were made defendants at the time it was filed; the filing of a supplemental com- plaint is the commencement of a new ac- tion as to added defendants. Jeffers v. Cook, 58 Cal. 147. The statute of limita- tions declares that the action shall be deemed commenced, within its meaning, "when the complaint has been filed in the proper court": the filing of the complaint, without the issuance of summons thereon, stojjs the running of the statute. Pimental V. San Francisco, 21 Cal. 351; Allen v. Marshall, 34 Cal. 165. The failure of a corporation to file its articles of incorpora- tion, simply deprives it of the right to maintain an action until the statute is com- plied with. Eiverdale Mining Co. v. Wicks, 14 Cal. App. 526; 112 Pac. 896. CODE COMMISSIONERS' NOTE. 1. Actions, when commenced. Actions are commenced by filing complaint and issuing summons. Dupuy v. Shear, 29 Cal. 239. And an action is not com- menced until the issuance of summons under the provisions of the statute limiting the time for the enforcement of mechanics' liens. Green V. Jackson Water Co., 10 Cal. 375. The pro- visions of § 350. that actions are commenced within the meaning of the statute of limitations, upon the filing of a complaint without the issuance of summons, does not apply to time of commen- cing an action for the enforcement of a mechanic's such an action is not commenced until corn- Legislation § 405. 1. Enacted March 11, 1873 ; based on Practice Act, § 22 (New York Code, § 127), as amended by Stats. 1855, p. 303, which read: "Civil actions in the district courts, supe- rior court of the city of San Francisco, and the county courts, shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon; provided, that after the filing of the complaint a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, an- swer or demurrer shall be deemed a waiver of summons." When enacted in 1872, § 405 had the words "and the issuing of summons thereon'' at the end of the section. 2. Amended by Code Amdts. 1873-74, p. 296. Actions, how commenced. Under the Practice Act, civil actions were commenced by filing the complaint with the clerk ot the court, and the issuance of summons thereon (Ex parte Cohen, 6 Cal. 318; Peo- ple v. O'Neil, 47 Cal. 109; Ex parte Hollis, 59 Cal. 405; Huerstal v. Muir, 62 Cal. 479; Adams v. Patterson, 35 Cal. 122) ; and the action was not deemed commenced until summons was actually issued. Flandreau v. White, 18 Cal. 639; Green v. Jackson Water Co., 10 Cal. 374; Sharp v. Maguire, 19 Cal. 577. The mode of commencing an action, and of acquiring jurisdiction of the parties, is controlled by the code, and not by the common law. Dupuy v. Shear, 29 Cal. 238; Adams v. Patterson, 35 Cal. 122. Where no complaint is filed, an action can- not be considered as commenced. Tinn v. United States District Attorney, 148 Cal. 773; 113 Am. St. Eep. 354; 84 Pac. 152. An action was commenced when the origi- nal complaint was filed (Allen v. Marshall, 34 Cal. 165); but where the complaint did not state a cause of action until the amend- ment thereof, the suit was not deemed com- mence Cal. 465. Time to answer when summons is served by publication. And if summons is served by publi- cation on defendant, non-resident of the state, he has forty days after the lapse of the period of publication. Grewell v. Henderson, 5 Cal. 4(i.5. 7. Judicial notice of local divisions of state, counties, etc., under subdivision 3. Courts take judicial notice of the territorial e.xtent of the jurisdiction and sovereignty exercised de facto by their own government, and of the local divis- ions of the country, as into states, counties, cities, towns, and the like, so far as political government is concerned. People v. Smith, 1 Cal. 9 ; see also § 1H7."), post. 8. Answer filed after time for answering has expired. It is perhai)S not strictly reRular to file the answer after the time for answering has ex|)ircd, without leave of the court. Hut if the default of the defendant had not been entered, we think the filing was not a nullity. It was, at most, a mere irregularity, for wliich the an- swer might have been stricken out, but on ac- count of which the plaintiff was not entitled to liave it set aside, unless the court, in the exer- cise of its discretion, deemed such to be the proper course. 'J'he whole proceedings were in fieri, and our opinion is, that the court had absolute power, either to retain the answer or to permit another to be filed, or to pursue what- ever course in that respect the justice of the case required. A defendant cannot, for these purposes, be considered in default until his de- fault has been actually entered in accordance with the statute. Bowers v. Dickerson, 18 Cal. 421. § 408. Manner and time of issuing alias summons. If the summons is re- turned without being 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 sum- mons 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 complaint. New summons, In action for forcible entry and detainer. See post, § 1167. Legislation § 408. 1. Enacted March 11, 1873, and then read: "If the summons is returned without being served on any or all of the defend- ants, the clerk, upon the demand of the plaintiff, may issue an alias summons in the same form as the original." 3. Amended by Code Amdts. 1875-76, p. 90, adding the words "or if it has been lost." 3. Amended by Stats. 1887, p. 50. 4. Amendment by Stats. 1901, p. 130; un- constitutional. See note ante, § 5. Time for issuance of alias summons. The clerk cannot issue an alias summons after the time fixed by statute (White v. Superior Court, 126 Cal. 245; 58 Pac. 450; Modoc Land etc. Co. v. Superior Court, 128 Cal. 255; 60 Pac. 848; Siskivou County Bank v. Hoyt, 132 Cal. 81; 64 Pac. 118; Sharpstein v. Eells, 132 Cal. 507; 64 Pac. 1080; Grant v. Mc Arthur, 137 Cal. 270; 70 Pac. 88; Swortfiguer v. White, 141 Cal. 576; 75 Pac. 172); but this does not impair the power of the court to authorize a sum- mons to be withdrawn for further service or service by publication. Rue v. Quinn, 137 Cal. 651; 66 Pac. 216; 70 Pac. 732. An alias summons, issued at any time prior to the commencement of the publication § 409. Notice of the pendency of an action affecting the title to real prop- erty. 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 defendant, at the time of filing his answer, when atifirmative relief is claimed in such answer, or at any time afterAvards, may record in the office of the recorder of the county in which the property is situated, a notice of the pendency of the action, containing 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 en- cumbrancer of the property affected thereby be deemed to have constructive service ordered, is sufficient to sustain a default judgment. Doyle v. Hampton, 159 Cal. 729; 116 Pac. 39. The issuance of an alias summons may be assuined from the recitals of the judgment. Doyle v. Hamp- ton, 159 Cal. 729^ 116 Pac. 39. Form of alias summons. The provision of this section as to the form of an alias summons means no more than that it shall conform to the requirements of § 407, ante; it does not preclude the insertion therein of the name of a defendant, omitted, through a clerical error, from the origi- nal summons. Doyle v. Hampton, 159 Cal. 729; 116 Pac. 39. This section has no ref- erence to the service of an alias summons, where parties are brought in by order of the court, or by stipulation, under the pro- vision of § 389, ante, and does not preclude service by publication. Bank of Venice v. Hutchinson, 19 Cal. App. 219; 125 Pac. 252. Unlike a summons, the length of l^ersonal notice, by citation, in a probate proceeding, may be prescribed by the court; otherwise it is five days. San Fran- cisco Protestant Orphan Asylum v. Su- perior Court, 116 Cal. 443; 48 Pac. 379. 409 MANNER OF COMMENCING CIVIL ACTIONS, 298 notice of the pendency of the action, and only of its pendency against parties designated by their real names. Lis pendens, in suit to quiet title. See post, S 749. Partition. Recording notice of suit. Post, § 75o. Person in possession of real property, action against, cannot be prejudiced by any alienation made by him. Post, § 747. Legislation § 409. 1. Enacted March 11, 1S73 ; ba.sed on Practice Act, § 27 (New York Code, § 132), which, as amended by Stats. 1871- 1 2, p. 189, read: "In an action aiifecting the title to real property, or the right to the possession of real property, the plaintiff, at the time of filing his complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time after- wards, may record with the county recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties to and the object of the action, and a description of the property in that county affected thereby; and the defendant may also, in such notice, state the nature and extent of the relief claimed in the answer. From the time of filing for record only, shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected therebv." When enacted in 1872, (1) the words "the title to," before "real property," were omitted, (2) after the latter, the words "or the right to the possession of real property" were omitted. (3) before "complaint," the word "his" was changed to "the," (4) the words "record with the county recorder" were changed to "file with the recorder," (5) the words "or defense" were added before "and a de.scription,^^ (6) the clause beginning "and the defendant" and ending "answer" was omitted, (7) the words "filing for record only, shall" were changed to "filing, only, is." and (8) the word "be" was omitted before "constructive." 2. Amended by Code Aradts. 1873-74, p. 297. 3. Amendment by Stats. 1901, p. 130; un- constitutional. See note ante, § 5. Notice of pendency of action. The com- mon-law doctrine in reference to pur- chasers pendente lite is qualified by this section; and a purchaser pendente lite, though not a party, is not bound by the result of the controversy, unless notice of lis pendens is filed with the recorder. Eichardsou v. White, 18 Cal. 102; Ault v. Gassaway, 18 Cal. 205; Grattan v. "Wig- gins, 23" Cal. 16; Horn v. Jones, 28 Cal. 194; Corwin v. Bensley, 43 Cal. 253; Par- tridge V. Shepard, 71 Cal. 470; 12 Pac. 4S0; Warnock v. Harlow, 96 Cal. 298; 31 Am. St. Eep. 209; 31 Pac. 166; McNamara v. Oakland Building etc. Ass'n, 132 Cal. 247; 64 Pac. 277. Notice of lis pendens is not jurisdictional. Blackburn v. Bucksport etc. R. R. Co., 7 Cal. A pp. 649; 95 Pac. 668. Character of actions to which applicable. The common-law doctrine of lis pendens did not apply to proceedings before a board exercising quasi-judicial functions, but only to those before a court; and the statute has not so extended it. Curran v. Shattuck, 24 Cal. 427. The object of the rule in equity was, not to restrict the right of alienation of the prevailing party, but to hold the interest of the losing party sub- servient to the judgment. Corwin v. Ben- sley, 43 Cal. 253; Welton v. Cook, 61 Cal. 481. It does not apply to proceedings in ejectment, but to proceedings in chancery, the purpose of which is to "affect titles" by turning equitable estates into legal ones, or to enforce liens upon legal es- tates (Wattson v. Dowling, 26 Cal. 124); nor does it apply to actions affecting the possession of real property, but only to actions which operate directly on the title, and by the result of which some change as to the title is wrought; examples of which are found in actions for the con- demnation of real estate, and for the spe- cific performance of contracts relating thereto, for the foreclosure of mortgages or other liens, and the like. Long v, Neville, 29 Cal. 131; Partridge v. Shepard, 71 Cal. 470; 12 Pac. 480. The filing of a notice of lis pendens affects only those parties designated by their real names. Davidson v. All Persons, 18 Cal. App. 723; 124 Pac. 570. Notice of lis pendens, filed during the pendency of a divorce suit, has no legal significance. Mayberry v. Whit- tier, 144 Cal. 322 ; 78 Pac. 16. A purchaser of land is not affected by proceedings for its condemnation, where no notice of lis pendens is filed (Bensley v. Mountain Lake Water Co., 13 Cal. 306; 73 Am. Dec. 575), as this section applies to condemnation proceedings; and the word "purchaser" in- cludes those who acquire a homestead in- terest in the property. Roach v. Riverside Water Co., 74 Cal. 263; 15 Pac. 776; Mc- Namara V. Oakland Building etc. Ass'n, 132 Cal. 247; 64 Pac. 277. It also applies to an action to foreclose the lien of a street assessment. Page v. W. W. Chase Co., 145 Cal. 578; 79 Pac. 278. A defend- ant asking afiirmative relief in a cross- complaint may file a lis pendens (Black- burn V. Bucksport etc. R. R. Co., 7 Cal. App. 649; 95 Pac. 668); and notice of an action affecting the title to real estate may be recorded. De Wolfskill v. Smith, 5 Cal. App. 175; 89 Pac. 1001. Filing of notice for record. The plain- tiff in an action to establish aud enforce a trust, who has filed notice of lis pendeus therein, is entitled to be made a party to the foreclosure of a lien upon the proji- ertv. Raudall v. Duff, 79 Cal. 115; 3 L. R. A. "754; 19 Pac. 532; 21 Pac. 610. The mere pendency of an action does not, as at common law, charge a subsequent pur- chaser; but notice of lis pendens must ap- pear of record. Warnock v. Harlow, 96 Cal. 298; 31 Am. St. Rep. 209; 31 Pac. 166; Carpenter v. Lewis, 119 Cal. 18; 50 Pac. 925; Commercial Bank v. Pritchard, 126 Cal. 600; 59 Pac. 130. This section ap- plies only to actions pending, not to judg- ments and decrees rendereil, which, at com- mon law, were notice to all persons. Grat- tan v. Wiggins, 23 Cal. 16, 17; Horn v. Jones, 28 Cal. 194. The filing of a notice of lis pendens in an action to foreclose a mortgage does not operate as notice to the 299 NOTICE — ACTUAL AND CONSTRUCTIVE— EFFECT. §409 grantees of the mortgagor; they must be maile jiartios. Jeffers v. Coolt, 58 C'al. 147. Constructive and actual notice. Tlio ob- ject of tl:e notice is to K'^'c the opportu- nity of defense, and also to notify third persons of the litigation, that they may not pur>-hase, except advisedly (Kichardson v. White, IS Cal. 102) ; and was intended as a substitute for the rule, that the pen- dency of the suit was itself constructive notice; and where a party has actual no- tice, he is as much bound by the judg- ment as if lis pendens had been filed. Sampson v. Ohlcyer, 22 Cal. 200; Black- burn V. Bucksport etc. R. R. Co., 7 Cal. A pp. 649; 95 Pac. 668. The rules of law relating to actual notice, and the effect thereof upon parties dealing with or tak- ing possession of the property in litigation, are in no sense changed by this section. Sampson v. Ohleyer, 22 Cal'. 200. The fil- ing of the notice of lis pendens does not operate as a prior recording of a subse- quent conveyance; nor is the uotice such an instrument as the statute contemplates. VVarnock v. Harlow, 96 Cal. 298; 31 Am. St. Rep. 209; 31 Pac. 166. The word "in- strument," as used in the code, will invari- ably be found to indicate some written paper or instrument, signed and delivered by one person to another, transferring the title to or creating a lien upon property, or giving a right to a debt or duty: it no- where embraces a writ of any kind. Hoag V. Howard, 55 Cal. 564; Warnoek v. Har- low, 96 Cal. 298; 31 Am. St. Rep. 209; 31 Pac. 166. Inquiry whether the purchaser had actual notice is unnecessary, for, by the terms of the statute, the notice of lis pendens filed with the recorder is the only notice of the pendency of the action that binds subsecjuent encumbrancers or pur- chasers. Corwin v. Bensley, 43 Cal. 253. Subsequent purchaser or encumbrancer. If any defendant, against whom judgment is rendered, was in possession at the time of the commencement of the action, any other party who took possession after the filing of the notice of lis pendens, or with actual notice of the pendency of the ac- tion, is bound by the judgment, and may be dispossessed by execution, the same as though he were a partv to the judgment. Fogarty v. Sparks, 22 Cal. 142. The effect of the notice of lis pendens is to make a subsequent purchaser a mere volunteer, affected by the judgment rendered in the action. Gregory v. Haynes, 13 Cal. 591; Haynes v. Calderwood, 23 Cal. 409. In an action affecting title to real estate, the notice of lis pendens binds purchasers from the defendants, who can only take subject to the decree rendered in the ac- tion. Curtis v. Sutter, 15 Cal. 259; Welton V. Cook, 61 Cal. 481. Notice of lis pendens is unnecessary, in an action to enforce a tax lien on property; the assessment cre- ates a lien which is not extinguished until the tax is paid or the property is sold; and the lien of the judgment, by operation of law, relates back to and takes effect from the date of the assessment. Reeve v. Ken- nedy, 43 Cal. 643. Where a notice of lis pendens is filed, the defendant cannot, by transfer of his possession, defeat the ac- tion; if the law were otherwise, it would be in the j)ower of the defendant to put the plaintiff to a new action as often as he thought ju'oper to assign. Sampson v. Ohleyer, 22 Cal. 200; Ferrca v. Chabot, 63 Cal. 564. The law of lis pendens. See rotes 14 Am. Dec. 774; 39 Am. Hep. 487; 56 Am. St. Hep. Hr,:i. Effect 01 lis pendens upon prior executory con- tract for sale of land. S^f noU' 7 Ann. (as. Kiyj. Application of doctrine of lis pendens to pur- chase after judgmeut and before institution of proceedings to review. See note 9 Ann. Cas. 987. i'lliug of lis pendens as notice of assignment See note 66 h. K. A. 771. Protection to one purchasing after decree and before any steps have been taken to review the same. See note lu L. K. A. (N. S.) 443. Effect of filing of lis pendens on marketability of title. See note 38 L. K. A. (N. S.) 29. CODE COMMISSIONERS' NOTE. 1. Construc- tion of section. Applicable to suits in ejectment. Secliou 27 of the Practice Act reads as follows: "In an action affecting the title of real prop- erty, the plaintiff, at the time of filing the com- plaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the recorder of the county in whicli the property is situated, a notice of the pendency of the action, containing the names of the parties to, and the object of, the action or defense, and a description of the property in that county af- fected thereby; and the defendant may also, in such notice, state the nature and extent of the relief claimed in the answer. From the time of filing, only, is the pendency of the action con- structive notice to a purchaser or encumbrancer of the property affected thereby." This was held, however, to have no relation to proceedings in ejectment, but to proceedings in chancery, the purpose of which is to aft'ect titles by turning equitable estates into legal ones or to dispose of legal estates by vendition for the purpose of satisfying liens upon Ihem, etc. Wattson v. Dowling, 26 Cal. 125. So, also, it was held that the section did not apply to actions aft'ecting the possession of real property, but only to actions affecting the title — it was held that the section only applied "to actions which operate directly upon the title, and by the result of which some change as to the title is wrought; examples of which are found in actions for the condemnation of real estate and the specific performance of contracts relating thereto, for the foreclosure of mortgages, or other liens and the like." Long V. Neville, 29 Cal. 135. In order to remedy this defect, if it could be so called, and make the section applicable to ejectment suits, the legis- lature of 1872 passed the following act: Stals. 1871-72, p. 189. "An Act to amend an act en- titled An Act to regulate proceedings in civil cases in courts of justice of this state, passed April twenty-ninth, eighteen hundred and fifty- one." Approved March 2, 1872. [Quoting the act.] But as this act is amendatory of an act which is repealed by the code, it does not affect § 409, and is repealed when the code takes ef- fect, that is, on the first day of January, 1873. See § 18, ante. Section 409, however, accom- plishes the same object by omitting the words "title to" between the words "affecting" a?)d "real property." So that now the cases of Watt- son V. Dowling, 26 Cal. 125, and Long v. Neville, 29 Cal. 135, so far as they hold that this sec- tion is not applicable to ejectment suits, etc., cease to be of any effect. It is clear that an action which affects the right to possession of real property certainly mt-st be held as "affect- ing real property," and consequently this sec- tion is applicable to suits in ejectment and ac- tions affecting the right to possession of real §409 MANNER OF COMMENCING CIVIL ACTIONS. 300 property in like manner with actions affecting ihe title to real property. „• u j 2. Application of section. In Richardson v. White Iri Cal. 106, this section was held to ap- ply to' those purchasing or taking encumbrances upon the property after filing of notice of pen- dency of the action (Ault v. Gassaway, 18 Cal. lio5); but this section only applies to actions pending, and not to judgments and decrees ren- dered, which, at common law, it would seem, were 'notice to all persons. Sorrell v. Carpenter, 2 P. Wms. 482; 24 Eng. Reprint, 825; Searle V. Lane, 2 Vern. 37, 88; 23 Eng. Reprint, 634, 667; Monell v. Lawrence, 12 Johns. 534; Wat- lington V. Howley, 1 Dessaus. (S. C.) 170; Grattan v. \Viggins, 23 Cal. 38. 3. Section not applicable to proceedings be- fore supervisors. The common-law doctrine of lis pendens does not apply to the proceedings be- fore a board of supervisors. Curran v. Shattuck, 24 Cal. 434. 4. Purchaser in good faith, with no notice of lis pendens. Where proceedings for the con- demnation of property were pending, a purchaser in good faith, where no notice of pendency of ac- tion is filed, is unaffected by the proceedings. Bensley v. Mountain Lake Water Co., 13 Cal. 307; 73 Am. Dec. 575. 5. Notice of pendency of suit must be filed, to have effect to charge purchaser. Under our stat- ute, the mere pendency of a suit does not charge the purchaser of the subject of it as a purchaser pendente lite, at common law. A notice of lis pendens, to have that effect, must be filed or ap- pear of record. Head v. Fordyce, 17 Cal. 151. The general rule is, that one not a party to a suit is not affected by the judgment. The ex- ception at common law is, that a pendente lite purchaser, though not a party, was so affected; the qualification of the doctrine made by our statute is, that such purchaser is not affected, unless notice of such lis pendens be filed with the recorder. It is not necessary to consider whether actual notice would not supply the place of this constructive notice, for the bill makes no such case. The common-law doctrine of lis pen- dens rests upon the fiction of notice to all per- sons of the pendency of suits; and to remedy the evils which might grow out of the transfer of apparent legal titles or rights of action to per- sons ignorant of litigation respecting them, this provision was inserted in our statute. We con- sider our statute, not as giving new rights to the plaintiff, but as a limitation upon the rights which he had before. If no lis pendens be filed, the party acquiring an interest or claim, pen- dente lite, stands wholly unaffected by the suit. If he has any rights which, but for the suit, he could set up, he may still maintain those rights. But he would not be foreclosed by a judgment against the party to the suit, from whom he ob- tained his assignment. The object of the statute evidently was to add to the common-law rule a single term, to wit, to require for constructive notice not only a suit, but filing a notice of it; so that this rule is as if it read: "The com- mencement of a suit and the filing of notice of it are constructive notice to all the world of the action, and purchasers or assignees, afterwards becoming such, are mere volunteers, and bound by the judgment. Richardson v. White, 18 Cal. 106. The rule of law v/as settled, that "every man is presumed to be attentive to what passes in the courts of justice of the state or sov- ereignty where he resides. And therefore a pur- chase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice, in point of fact, affects the purchaser in the same man- ner as if he had such notice; and he will ac- cordingly be bound by the judgment or decree in the suit." 1 Story's Equity, § 405. This rule sometimes operated as a hardship upon parties who had no actual notice, and the code (§409) provides that the plaintiff or defendant may file a notice of the pendency of the action with the recorder of the county in which the property is situated, and the law provides, that, "from the time of filing only shall the pendency of the ac- tion be constructive notice to a purchaser or en- cumbrancer of the property affected thereby." In no other respect are the rules of law relating to the subject changed by the statute. A pur- chaser or encumbrancer of property, instead of being required to examine all the suits pending in the several courts, to ascertain whether any of them relate to or affect the real estate he is negotiating about, has now only to examine the notices ot lis pendens tiled in the recorder's otifice of tile couuiy where the real estate is situ- ated, and he is only bound by constructive notice of what may there appear. 'Ihe rules of law relating to actual notice of a pending action, and the effect of such actual notice upon parties deal ing with or taking possession of property in litigation, are in no sense changed by this sec- tion of the Practice Act, but remain the same as before this law was passed. Richardson v. White, 18 Cal. 102; Bensley v. Mountain Lake Water Co., 13 Cal. 306; 73 Am. Dec. 575; Head V. Fordyce, 17 Cal. 149; Ault v. Gassaway, 18 Cal. 205; Sampson v. Ohleyer, 22 Cal. 210. 6. Purchaser during pendency of action, but where no notice is filed. If a party purchases land during the pendency of an action to fore- close a mortgage on it, but where no notice of lis pendens has been filed, and he purchase with- out notice, after entry of default but before final judgment, he is not bound by the judgment, even if final judgment gives constructive notice to par- ties dealing with the subject-matter. Abadie v. Lobero, 36 Cal. 400. 7. Effect of a notice of pendency of action upon subsequent purchasers. It was held that the efl'ect of the lis pendens was to make a sub- sequent purchaser a mere volunteer, affected by the judgment rendered, or which might be ren- dered, in the suit, of the peiidency of which notice was given. Gregory v. Haynes, 13 Cal. 594; see also Gregory v. Haynes, 21 Cal. 446; and these cases are aftirmed in Haynss v. Calder- wood, 23 Cal. 410; see also Curtis v. Sutter, 15 Cal. 263. Where an action to set aside a fraudu- lent deed was commenced, and a notice of the pendency of the action was filed, it was held that a party who bought of the defendant subse- quent to the filing of the notice of lis pendens was bound by the decree. Hurlbutt v. Butenop, 27 Cal. 56. And in an action to foreclose a mortgage, a purchaser, subsequent to notice of lis pendens filed, was held to stand in the same position as his grantor, as to the issuance of a writ of assistance in favor of a purchaser under the decree of foreclosure. Montgomery v. Byers, 21 Cal. 107. A notice of lis pendens having been duly filed, a party purchising from the defendant while the action was pending, and af- ter the notice was filed, is bound and estopped by the judgment therein. Calderwood v. Tevis, 23 Cal. 337. 8. Subsequent purchaser with notice of lis pendens. A purchaser of land, with notice of the pendency of an action for the foreclosure of a mortgage on it, or a purchaser after final judg- ment, in either case is bound by the judgment. Abadie v. Lobero, 36 Cal. 399. 9. Purchaser pendente lite, estopped by the decree. If an action is brought against a cor- poration to foreclose a mortgage, purporting to have been executed by it, and a lis pendens is filed, and a decree is rendered enforcing the mortgage, a party who buys the mortgaged prop- erty, pendente lite, at sheriff's sale, made on a judgment which does not enforce a lien older than the lis pendens, is estopped from saying that the mortgage was not the act of the cor- poration. A party who has no interest in mort - gaged property at the time an action is brought to foreclose the mortgage, and who liuys, pen- dente lite, and after a lis pendens has been filed, is not a necessarv party to the foreclosure. Horn V. Jones, 28 Cal. 194. 10. Actual notice of pendency of action, of same effect as filing of notice of lis pendens. If notice of lis pendens is filed, there can be no doubt that every party acquiring an interest in the premises subse(;ne:it to the filing would have been bound by the judgment in the foreclosure suit without being made a party. Hurlbutt v. Butenop, 27 Cal. 56; Horn v. Jones, 28 Cal. 194; Haynes v. Calderwood, 23 Cal. 409. It does not appear in this case that a notice of lis pendens was in fact filed. But the object of fil- ing such a notice is to afford constructive notice of the pendency of the action. T'his is the only effect indicated by the code (§ 409). Th" ob- 301 SUMMONS — COMPLAINT SERVICE — RETITRN. §410 ject bring to afford notice, actual notioc must certainly be as effectual as constructive notice under the statute. We can perceive no good reason why a party taking an interest in a tract of land, pending a proceeding to foreclose a inorfg.TKe upon it. with actual notice of the ac- tion, should not be bound by the .iudgment, al- though no notice of lis pendens has been filed. We think he is, and so hold the law to be. Sharp V. Lumlev, ,T4 Cal. 615; see also Sampson V. Ohlevor, 22 Cal. 210. 11. What constitutes actual notice of pendency of action. In this case a foreclosure suit was commenced before the petition in insolvency was filed. In the schedule attached to the petition in insolvency, the debt, and the mortgage upon the land in controversy to secure it, were specifi- § See See cally described, and this stntomont appended: "Suit for foreclosure commenced." And the or- der of the .iudge expressly provided "that all actions now pending may be prosecuted to judg- ment," This order allowed the action for fore- closure to proceed; and the assignee in insol- vency, and all parties [lurchasing from him. had notice of tbe pendency of the foreclosure suit, and tlipv are l)Ound by the judgment. Sharp v. Lumlev," 34 Cal. 615. Sntricient notice to put one on inquiry as to pendency of action. See Grattan v. Wigging, 23 Cal. 38. 12.- When an action is considered pending. An action is still pending, after a default, until final judgment has been entered. Abadie v. Lobero, 36 Cal. 400. 410. Summons, how served and returned. The summons may be served by the sheriff of the county where the defendant is found, or by any other person over the age of eighteen, 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 certificate 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 returned 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. 3. Amended by Stats. 1893, p. 207. 4. Amendment by Stats. 1901, p. 130; un- con.stitutional. See note ante, § 5. Copy of complaint must be served. A copy of the complaint must be served with the summons. Southern Pac. E. R. Co. v. Superior Court, 59 Cal. 471. The Practice Act did not require a copy to be served on each defendant: service of a copy on one of the defendants residing in the county was sufficient. Calderwood v. Brooks, 28 Cal. 151. Where the summons has never been served upon the defendant, the ser- vice of an amended complaint upon him is void. Powers v. Braly, 75 Cal. 237; 17 Pac. 197. Keturn of sheriff. In making service of the summons, and in the return thereof, the provisions of the statute must be, and must appear to have been, substantially observed and followed by the officer; otherwise the proceedings cannot be sup- ported upon a direct appeal. People v. Bernal, 43 Cal. 385. The failure of the return to show that a copy of the com- plaint was served is a mere irregularity, and does not affect the validity of the judgment. Shirran v. Dallas, 21 Cal. App. 405; 132 Pac. 88, 454. The officer may al- ways amend his return so as to conform to the facts, if there are no intervening riohts to be affected. Newhall v. Provost, 6 Cal. 85; Gavitt v. Doub, 23 Cal. 78; Rous- set v. Bovle, 45 Cal. 64; Hewell v. Lane, 53 Cal. 213; People v. Murback, 64 Cal. 369; 30 Pac. 608; Allison v. Thomas, 72 Cal. 562; 1 Am. St. Rep. 89; 14 Pac. 309; Estate of Newman, 75 Cal. 213; 7 Am. St. Rep. 146; 16 Pac. 887; People v. Golden- son, 76 Cal. 328; 19 Pac. 161; McGrath v. Wallace. 116 Cal. 548; 48 Pac. 719. A mistake in the date of the sheriff's return Process, liov.f returnable to another county. Pol. Code, § 4158. Ketura of sheriff, prima facie evidence. Pol. Code, § 4159. Delay of sheriff in making return, liability. See Pol. Code, § 4160. Legislation § 410. 1. Enacted March 11, 1873; based on Practice Act, § 28, as amended by Stats. 1869-70, p. 574, which read: "The sum- mons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him or appointed by a judge of the court in which the action is brought, or by any white male citizen of the United States over twenty-one years of age, who is competent to be a witness on the trial of the action, except as hereinafter provided; a copy of the complaint shall be served with the summons. Where the summons is served by the sheriff or his deputy, it shall be returned, with the certificate or affidavit of the officer of its service and of the service of the copy of the complaint, to the office of the clerk from which the summons issued. When the summons is served by any other person, as before provided, it shall be returned to the office of the clerk from which it issued, with the affidavit of such person of its service, and of the service of a copy of the complaint. If there be more than one de- fendant in the action, and such defendants reside within the county, a copy of the complaint need be served on only one of the defendants." When enacted in 1872, § 410 read: "The summons may be served by the sheriff of the county where the defendant is found, or by any other person not a party to the action. A copy of the com- plaint must be served with the summons, unless there is more than one defendant residing in the same county, in which case a copy of the com- plaint must he served upon one of them. When the summons is served by the sheriff it must be returned, with his certificate of its service, and of the service of a copy of the complaint, to the office of the clerk from wliieh 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." 2. Amended by Stats. 1873-74, p. 297, to read as at present, except that the words "upon each of the defendants" were changed from "un- less two or more defendants are residents of the same county, in which case a copy of the com- plaint need only be served upon one of such defendants." §410 MANNER OF COMMENCING CIVIL ACTIONS. 302 m Sea ay be corrected at any time. Eitter v. .^^auuell, 11 Cal. 238; 70 Am. Dec. 775; Herman v. Santee, 103 Cal. 519; 42 Am. St. Eep. 145; 37 Pac. 509. It will be pre- sumed in favor of the officer who has the general power of making the service, that he discharged his duty in the legal mode. Curtis V. Herrick, 14 Cal. 117; 73 Am. Dec. 632. A defendant who was legally served, and who did not defend, on the ground that he was not the party intended to be served, cannot, after judgment against him, resist its enforcement on that ground. Brum V. Ivins, 154 Cal. 17; 129 Am. St. Eep. 137; 96 Pac. 876. A return, that the defendant cannot be found within the county, is sufficient. Rue v. Quinn, 137 Cal. 651; 66 Pac. 216; 70 Pac. 732. Service by one other than sheriff. The right to serve process does not belong to every private individual; it is restricted to a particular class, and as to them, it is given to be exercised only under particu- lar circumstances, and, to be legal, the service must be by some one authorized, as well by personal capacity to act as by the existence of the particular facts which impart the authority or control the mode of action; the validity of the act of ser- vice depends upon its being authorized, and it must appear in the record. McMil- lan V. Reynolds, 11 Cal. 372. The pro- vision authorizing service by one other than the sheriff has been held constitu- tional. Hibernia Sav. & L. Soc. v. Clarke, 110 Cal. 27; 42 Pac. 425; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. Aifidavit of service. A certificate by a constable is not sufficient to confer juris- diction (Berentz v. Belmont Oil Mining Co., 148 Cal. 577; 113 Am. St. Rep. 308; 84 Pac. 47; Berentz v. Kern King Oil etc. Co., 7 Cal. Unrep. 214; 84 Pac. 45); nor is one bv a deputy sheriff. Reinhart v. Lugo, 86'Cal. 395; 21 Am. St. Rep. 52; 24 Pac. 1089. Where the service is made by one other than the sheriff, or the person ap- pointed by the judge, the affidavit should show that such person possessed the quali- fications enumerated in the section; but an objection goes only to the formality of the return, which may be amended; and the judgment is good against a collateral at- tack for a mere irregularity of service. Dorente v. Sullivan, 7 Cal. 279; Pellier v. Gillespie, 67 Cal. 582; 8 Pac. 185. The statute does not require the summons to be filed, but only returned with the affi- davit of service to the ofllce of the issuing clerk; and whore returned and filed with the affidavit annexed, this is sufficient. Hibernia Sav. & L. Soc. v. Clarke, 110 Cal. 27; 42 Pac. 425. The affidavit, when made by a person other than the sheriff, must state that at the time of service the per- son making the same was over eighteen vcars of age. Maynard v. MacCroUish, 57 Cal. 355; Howard v. Galloway, 60 Cal. 10; Weil V. Bent, 60 Cal. 603; Doerfler v. Schmidt, 64 Cal. 265; 30 Pac. 816; Lyons V. Cunningham, 66 Cal. 42; 4 Pac. 938; Barney v. Vigoureaux, 75 Cal. 376; 17 Pac. 433; Horton v. Gallardo, 88 Cal. 531; 26 Pac. 375; Herman v. Santee, 103 Cal. 519; 42 Am. St. Rep. 145; 37 Pac. 509. Where a person other than the sheriff attempts to make service upon a defendant within the county, he should, as a rule, be re- quired to show, in his affidavit, the nature of the eft'ort made by him to serve the party, and, where practicable, give the reasons why service could not be made. Kahn v. Matthai, 115 Cal. 689; 47 Pac. 698. An affidavit of service of summons may be amended nunc pro tunc. Woodward v. Brown, 119 Cal. 283; 63 Am. St. Rep. 108; 51 Pac. 2, 542. It need not appear by the return that the party serving a summons in unlawful detainer did so at the request of the plaintiff or his attorney. Block v. Kearney, 6 Cal. Unrep. 660; 64 Pac. 267. It is the fact of profjer service, and not the proof thereof, that gives the court ju- risdiction. Morrissey v. Gray, 160 Cal. 390; 117 Pac. 438. Amendment of return. The power of the court to order returns amended is not affected by mere lapse of time, or by the fact that the officer making the return is, at the time of the proposed amendment, out of office. Morrissey v. Gray, 160 Cal. 390; 117 Pac. 438. The amendment of the return is permitted in support of the judg- ment actually given, but not where the effect would be to avoid the judgment, or render it erroneous, or subject it to re- versal. Morrissey v. Gray, 160 Cal. 390; 117 Pac. 438. Where the facts conferring jurisdiction exist, but the record of them, by way of the return, is defective, great liberality is allowed in permitting an amended return to be filed. Morrissey v. Gray, 160 Cal. 390; 117 Pac. 438. Service of process by attorney or agent of plaintiff. See note 102 Am. St. llvp. 694. CODE COMMISSIONERS' NOTE. 1. Service of summons by person otber than the slieriff. Formerly § 28 of the Practice Act provided that "service of summons might be made by," among other persons, "any white male citizen over twenty-one years of age, who is competent to be a witness on the trial of the action," etc., and "a copy of the complaint, certified by the clerk, should be served with the summons." Under these provisions, affidavits of service of summons were held to be defective, which did not state that the person serving it was a white male citi- zen, and over twenty-one years of age, and competent to testify; and that a certified ropy of the complaint accompanied the summons. See McMillan v. Revnolds, 11 Cal. 378: Hahn v. Kellv, 34 Cal. 404; 94 Am. Dec. 742; Reynolds V. Page, 35 Cal. 299; Curtis v. Herrick, 14 Cal. 119; 73 Am. Dec. 632. It will be observed, how- ever, that § 410 of the code omits the retiuire- ments, that the person making service shall be a "wliite male citizen of the age of twenty-one years," and also that the copy of the complaint shall be certified by the clerk, etc. The only requirement is, that he shall not be a party to the action. Of course, as a matter of proof of service, he must be competent to make an affida- vit. See also Dimick v. Campbell. 31 Cal. 239; ITahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, affirmed in Quivey v. Porter, 37 Cal. 458; see also Reynolds v. Page, 35 Cal. 299. 303 SUMMONS — SERVICE, HOW MADE, AND KINDS OF. §411 2. Service by deputy, and his return thereon. The return of the service of summons issued in an action was signed Elijnli T. Cole, D. S., and it was held th.it such a return was insuthcient to prove service, and that the act and return of a deputy is a nullity, unless done in the name and by the authority of the sheriflf. Rowley v. How- aid, 23 Cal. 403, affirming Joyce v. Joyce, 5 Cal. 449 ; and, to the same effect, see Lewes v. Thompson, 3 Cal. 2G6. 3. Return by sheriff. Amendments thereto. Correction of mistakes. The slieriff has no right, after malting a return, to nmend it so as to af- fect rights which have already vested. Newhall V. Provost, 6 Cal. 87. But a mistake in the date may be corrected any time. Ritter v. Scannell, 11 Cal. 249; 70 Am. Dec. 775. 4. Service where there are more than one de- fendant residing in same county. Where the aftidavit states the co\inty in which service was made, and one of defendants makes default, it will Ido presumed that he was a resident of the county where service was made. A copy of the compI.Tint need be served on but one of several defendants residing in same county. Calderwood V. Brooks, 28 Cal. 1.'53. 5. Proof of service of summons and complaint. See § 415, post, and notes. § 411. Summons, how served. The summons must be served by deliver- ing a copy thereof as foliows: 1. If the suit is against a corporation formed under the laws of this state : to the president or other head of the corporation, vice-president, secretary, assistant secretary, cashier or managing agent thereof. 2. If suit is against a foreign corporation, or a non-resident joint-stock company or association, doing business and having a managing or business agent, cashier or secretary within this state : to such agent, cashier or secre- tary. 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 guardian: or if there be none within this state, then to any person having the care or control of such minor, or with whom he resides, or in whose service 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 legisla- tive department thereof. 6. In all other cases to the defendant personally. Kinds of service. Service of summona may be personal, or, in some cases, by pub- Association, service may be on one of members of. Ante, § 388. Return of summons. Post, § 581a. Telegraph, service by. Post, § 1017. Legislation § 411. 1. Enacted March 11, 1873 (based on Practice Act, § 29, as amended by Stats. 1861, p. 496), and then read: "§ 411. The sum- mons must be served by delivering a copy thereof, as follows: 1. [Same as the present amendment (1915)]; 2. If the suit is against a foreign cor- poration, or a non-resident joint-stock company or association doing business and having a man- aging or business agent, cashier, or secretary within this state: to such agent, cashier, or secre- tary; 3. If against a minor under the age of four- teen years: to such minor personally, and also to his father, mother, or guardian ; or if there be none within the state, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed; 4. If against a person judicially declared to be of unsound mind or incapable of conducting his own atfairs, and for whom a guardian has been ap- f)oinled: to such guardian ;" [subds. 5 and 6 read- ng the same as the present amendment ( 1915 ). | S. Amended by Code Amdts. 1873-74, p. 298. 3. Amended by Stats. 1915, p. 943, (1) in subd. 1, inserting "vice-president" and "assist- ant secretary"; (2) in subd 2, striking out "the" in the phrase "If the suit"; (3) in subd. 3, second clause, "this" substituted for "the," in the phrase "within the state." The other changes are in matters of punctuation, probably the result of carelessness. lication. People v. Huber, 20 Cal. 81. "Personal service" means the actual de- livery of the process to the defendant in person. Holiness Church v. Metropolitan Church Association, 12 Cal. App. 44.5; 1(J7 Pac. 633. Personal service of -writs and process can only be made by delivery to the person (Edmondson v. Mason, 16 Cal. 386) ; and where the return shows that the summons was served upon one not designated as the defendant, it is insuffi- cient. Adams v. Town, 3 Gal. 247. "Per- sonal service" upon a corporation, domestic or foreign, is made, under this section, by delivering a copy of the summons, together with a copy of the complaint, to certain designated officers thereof. Holiness Church v. Metropolitan Church Association, 12 Cal. App. 445; 107 Pac. 633. A party regularly served, though by a wrong name, is bound, unless he comes in and sets up the mis- nomer and whatever defense he may have. Brum V. Ivins, 154 Cal. 17; 129 Am. St. Eep. 137; 96 Pac. 876. Service on a for- eign corporation, in a manner other than §411 MANNER OF COMMENCING CIVIL ACTIONS. 304 that authorized by § 405 of the Civil Code, though a person desiguated by such cor- poration, resident in the state, is a con- structive and not a personal service. Holi- ness Church v. Metropolitan Church Asso- ciation, 12 Cal. App. 445; 107 Pac. 633. Service in suit against domestic corpora- tion. In a suit against a domestic cor- poration, service must be upon its presi- dent or other head, or on its secretary, cashier, or managing agent; service upon "J. S., one of the proprietors of the com- pany," is insufficient. O'Brien v. Shaw's Flat etc. Canal Co., 10 Cal. 343. Service must be made upon one of the officers named in the statute. Aiken v. Quartz Rock etc. Mining Co., 6 Cal. 186; O'Brien V. Shaw's Flat etc. Canal Co., 10 Cal. 343. Service on the receiving and paying teller of a bank cannot bind the corporation (Kennedy v. Hibernia Sav. & L. Soc, 38 Cal. 151; Blanc v. Paymaster Mining Co., 95 Cal. 524; 29 Am. St. Rep. 149; 30 Pac. 765) ; but service upon a president de jure is sufficient. Eel River Nav. Co. v. Struver, 41 Cal. 616. While the service may be on the president, yet the sheriff making the service must make the return accord- ing to the fact. People v. Lee, 128 Cal. 330; 60 Pac. 854. Action against a foreign corporation. A foreign corporation must be "doing busi- ness" in this state, to justify service upon it through a managing agent. Dickinson v. Zubiate Min. Co., 11 Cal. App. 656; 106 Pac. 123. A single transaction by a for- eign corporation does not constitute doing business within the state, so as to author- ize the service of summons. Jameson v. Simbnds Saw Co., 2 Cal. App. 582; 84 Pac. 289. The service must be upon the per- son designated by the corporation as its agent, cashier, or secretary. Eureka etc. Canal Co. v. Superior Court, 66 Cal. 311; 5 Pac. 490; Jameson v. Simonds Saw Co., 2 Cal. App. 582; 84 Pac. 289. Service upon a traveling solicitor, not shown to be a partner or managing agent of a copart- nership, is not sufficient. Booth v. Gamble- Eobinson Commission Co., 139 Cal. 175; 72 Pac. 908. Service is also insufficient, when made on a person whose name is appended to advertisements as general manager of a railroad "route," and who is not a party to the action, nor has ever been the man- aging or business agent, cashier, or sec- retary of the defendant, within this state. Norton v. Atchison etc. R. R. Co., 97 Cal. 388; 33 Am. St. Rep. 198; 30 Pac. 585; 32 Pac. 452. The term "business agent" does not mean every person intrusted with a commission or an employment by a foreign corporation: it means one performing the duties of managing agent, cashier, or sec- retary of the corporation. .Jameson v. Simonds Saw Co., 2 Cal. App. 582; 84 Pac. 289. The service of summons, in this state, upon the president of a foreign cor- poration, is insufficient to support a judg- ment by default, where neither the com- plaint nor the affidavit of service of sum- mons shows the required statutory facts. R. H. Herron Co. v. Westside Electric Co., 18 Cal. App. 778; 124 Pac. 455. Service in action against a minor. The third subdivision of this section, providing for service upon an infant, has no applica- tion to the service of a notice in a special proceeding. Estate of Hamilton, 120 Cal. 421; 52 Pac. 708. The provision requiring personal service upon an infant under the age of fourteen, and also upon his guar- dian, is mandatory. Gray v. Palmer, 9 Cal. 616. An infant under the age of fourteen years, not served with process, cannot nominate the attorney, nor can the court appoint a guardian ad litem until after service upon him (McCloskey v. Sweeney, 66 Cal. 53; 4 Pac. 943; Redmond v. Peter- son, 102 Cal. 595; 41 Am. St. Rep. 204; 36 Pac. 923; Johnson v. San Francisco Sav. Union, 63 Cal. 554), as the court has no right to appoint a guardian until the in- fant is brought into court. Emeric v. Alvarado, 64 Cal. 529; 2 Pac. 418. Suffi- ciency of service of summons upon minors. Richardson v. Loupe, 80 Cal. 490; 22 Pac. 227. Service in action against person of un- sound mind. In an action against an in- competent person, service must be upon both the incompetent and his guardian (Justice V. Ott, 87 Cal. 530; 25 Pac. 691); but where, although the person is alleged to be insane, it does not apear that any guardian has been judicially appointed, service upon the defendant personally is sufficient. Sacramento Sav. Bank v. Spen- cer, 53 Cal. 737. No valid judgment can be rendered against an insane person, un- less he has been served with summons. In re Lambert, 134 Cal. 626; 86 Am. St. Rep. 296; 55 L. R. A. 856; 66 Pac. 851. What return sufficient in justice's court. Cardwell v. Sabichi, 59 Cal. 490. Citation, how served. See note post, § 1709. Service of process on one of several partners. See notes 44 Am. Dec. 570; 20 Ann. Cas. 1238. Service of process on corporations. See note 66 Am. Dec. 119. Who is "agent" within statute providing for service of process on agent of foreign corporation. See note 19 Ann. Cas. 200. Who may be served in suit against foreign cor- poration. See note 23 L. R. A. 490. Who is managing agent of foreign corporation for purposes of service of process. See note 4 L. R. A. (N. S.) 460. Service of process upon foreign corporation not doing business in state as basis of judgment in personam. See note 8 L. R. A. (N. S.) 538. Right to serve process in action against corpo- ration upon non-resident officer who is within state as party or witness. See note 24 L. R. A. (N. S.) 276. CODE COMMISSIONERS' NOTE. 1. Service of summons on officers of corporation. Service must be on one of the officer.s mentioned in sub- division 1 of this section. Aiken v. Quartz Rock Mariposa Mining Co., 6 Cal. 186; and a return is sufficient which states that service was made on 305 SERVICE BY PUBLICATION — CERTIFICATE OP RESIDENCE. § 412 J. S., one of the "proprietors" of a company; tions, 5 637; 1 Tidd's Prarticp, p. 116; McQueen it must state that such person was either "presi- v. Mifl'llctnwn MimufacturiiiK Co., 16 Johns. C. (lent or head of the corporation, secretary, cash- 4. Infant under fourteen years of age, how ier, or managing agent thereof." O'Brien v. served. Wlien llie suit is against a minor under Shaw's Flat etc. Canal Co., 10 Cal. 343; Adams tlie ago of fourteen, service is to be made by V. Town, 3 Cal. 247. delivering a copy of summons and complaint to 2. Service of summons on officers of corpora- him personally, and. also, to his father, mother, tlon. Where tlu^ return of the sherilT slatiMl that or guardian, etc.; and in cases where such in- service was made "on A and B, the presid Mif fant resides out of the state, and his residence and secretary of the corporation," it was lii>ld is known to plaintiff, a copy of the summons that it was primary evidence that the persons should be deposited in the post-office, directed named were such ofTicers, and that the return was to the infant, in the same manner as if he were not erroneous on account of its form. Rowe v. over fourteen. Gray v. Palmer, 9 Cal. 638. Table Mountain Water Co., 10 Cal. 441; Wilson 5. What constitutes personal service. The V. Spring Hill Quartz-Mining Co., 10 Cal. 44r>. personal service of writs and process can only 3. Service on officers of corporation. Man- be made by delivering a copy to the party upon aging agent, defined. In a case where the corpora- whom the service is required. So far as sum- tion was a banking firm, it was lield that service mons is concerned, the statute designates the on the "teller" of the bank was not sufficient. mode (§ 411). Independently of the statute, the It must be strictly on the preside;it, or other mode would be by showing the original under head of the corporation, secretary, cashier, or the seal of the court, and delivering a copy, managing agent. Kennedy v. Hibernia Sav. & L. Edmondson v. Mason, 16 Cal. 3SS. Soc, 38 Cal. 154. If service is made on an 6. Service of summons. Ecdelivery and ser- agent of a corporation, it must be on the man- vice after retvirn. After a summons has been aging agent, and not on one of its general business served on some of the defendants and returned, agents. See Kennedy v. Hibernia Sav. & L. the court may order that it should be redeliv- Soc, 38 Cal. 154. At common law, service was ered to plaintiff for further service on other de- required on the president or principal officer of fendants, either in the same or another county. the corporation. Angell and Ames on Corpora- Hancock v. Preuss, 40 Cal. 572. § 412. Cases in which service of summons may be by publication. Cer- tificate of residence. "Where the person on wiiom service is to be made resides out of the state; or has departed from the state; or cannot, after due diligence, be found wuthin the state ; or conceals himself to avoid the service of summons; or is a corporation having no managing or business agent, cashier or secretary, or other officer upon whom summons may be served, who, after due diligence cannot be found within the state, and the fact ap- pears 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 action ; or when it appears by such, affidavit, or by the complaint on file [t] herein, that it is an action which relates to or the subject of which is real or personal prop- erty in this state, in which such person defendant or corporation defendant has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part in excluding such person or cor- poration from any interest therein, such court or judge may make an order that the service be made by the publication of the summons ; provided, that where service is sought to be made upon a person who cannot, after due diligence, be found within the state it must first appear to the court by the affidavit aforesaid that there has not been filed, on behalf of such person, in the county where such action is pending, the certificate of residence provided for by section one thousand one hundred and sixty-three of the Civil Code in the county in which the action is brought ; or that said certificate was so filed and that the defendant cannot be found at the place named in said cer- tificate, which latter fact must be made to appear by the certificate of the sheriff of the county wherein said defendant claims residence in and by said certificate of residence, and which certificate of said sheriff must show that service of said summons was attempted upon said defendant at the place named in said certificate of residence but that said defendant was not to be found thereat. Summons. 2. Service of, in justice's court, by publica- 1. Publication of, In suit to quiet title, tlon. See post, § 849. when authorized. See post, §§ 749, 750. 1 Fair.— 20 §412 MANNER OF COMMENCING CIVIL ACTIONS. 306 Legislation § 412. 1. Knacted March 11, 1873; based on Practice Act, § 30 (New York Code, §135); and the section then read: "Where the person on whom the service is to be made re- sides 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 corporation 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, or a county judge, 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 action, such court or judge may make an order that the service be made by the publication of the summons." When enacted in 1872, (1) the phrase was added, "or is a foreign corporation having no managing or business agent, cashier, or secretary within the state"; (2) "also appears by such affidavit, or by the verified complaint on file," was substi- tuted for "shall in like manner appear" ; and the words "judge may make" were substituted for "judge may grant." 2. Amended by Code Amdts. 1880, _p. 13, striking out the words "or a county judge." 3. Amended by Stats. 1893, p. 285, adding, before "such court or judge," and after "party to the action," near the end of the section, "or when it appears by such affidavit, or by the complaint on file [tjherein, that it is an action which relates to or the subject of which is real or personal property in this state, in which such person defendant, or foreign corporation defend- ant has or claims a lien or interest, actual or contingent, therein, or in which the relief de- manded consists wholly or in part in excluding such person or foreign corporation from any in- terest therein." 4. Amendment by Stats. 1901, p. 130; un- constitutional. See note ante, § 5. 5. Amended by Stats. 1905, p. 141, (1) sub- stituting semicolons for commas, in the first part of the section, before the phrases beginning "or has departed," "or cannot," "or conceals him- self," "or is a foreign corporation"; (2) adding the proviso. 6. Amended by Stats. 1913, p. 69 (approved April 23, 1913), (1) after the words "or secre- tary within the state," adding "or is a domestic corporation the officers and agents of which, upon whom, under the law, service may be made binding upon the corporation, cannot after due diligence, be found within the state"; (2) sub- stituting a semicolon for a comma before "pro- vided," and adding a comma after that word. 7. Amended by Stats. 1913, p. 1422 (ap- proved May 20, 1913), (1) striking out the word "foreign" before "corporation" in the three in- stances; (2) recasting the amendment of April 23d, noted supra. Service by publication. This section is general, and in terms applies to all ac- tions; it is not invalid because it includes proceedings purely in personam as well as proceedings in rem. Perkins v. Wakehara, 86 Cal. 580; 21 Am. St. Eep. 67; 25 Pac. 51. Service of summons by publication is set on foot by an affidavit showing the exist- ence of the statutory facts. Hahn v. Kelly, 34 Cal. 391; 91 Am. Dec. 742. The facts may appear either by affidavit or verified comj)laint, or by both (Ligare v. California Southern R. R. Co., 76 Cal. 610; 18 Pac. 777) ; but where the complaint is unverified, the affidavit must state facts showing that a cause of action exists against the defendant. Yolo County v. Knight, 70 Cal. 430; 11 Pac. 6G2. All of the required facts must appear; the exist- ence of one condition is not enough (Braly V. Seaman, 30 Cal. 610); but where the affidavit is sufficient in form, the court must accept the statements as true, and make the order as demanded. Dunlap v. Steere, 92 Cal. 344; 27 Am. St. Rep. 143; 16 L. E. A. 361; 28 Pac. 563. The exist- ence of a cause of action against the de- fendant is a jurisdictional fact. Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445; 71 Pac. 498; Estate of McNeil, 155 Cal. 333; 100 Pac. 1086. Where defendant conceals himself. Where the defendant conceals himself to avoid service, he cannot complain of want of personal service (Ware v. Robinson, 9 Cal. 107); nor, where the facts of conceal- ment and residence appear to exist, has he the right to question the truth of the allegations after the expiration of six months; he is deemed to be in court, un- der such circumstances, and must be held to know the allegations of the complaint, and to admit them to be true (Ware v. Robinson, 9 Cal. 107; Jordan v. Giblin, 12 Cal. 100) ; and where the affidavit shows that he resides within the state, but has disappeared, and cannot be found therein, and it appears that he is concealing him- self to avoid service, an order of publica- tion is properly made. Bradford v. Mc- Avoy, 99 Cal. 324; 33 Pac. 1091. Proof that the defendant secreted himself to avoid service may be made, to avoid a dis- missal under § 581a; but, where the evi- dence is conflicting, a finding that he did so secrete himself is conclusive upon ap- peal. Wilson V. Leo, 19 Cal. App. 793; 127 Pac. 1043. The return of the officer is sufficient evidence of due diligence; and where the affidavit shows that the defend- ant resides in the township or county, and sets out the facts respecting his absenting himself from his home, there is a sufficient showing to justify an order of publication. Seaver v. Fitzgerald, 23 Cal. 85. Where the defendant is absent or is a non- resident. Where the affidavit shows that the plaintiff has a cause of action against the defendant, and refers to his verified complaint containing a like showing, and that the defendant is a non-resident of the state, it is sufficient to warrant an order of service of summons by publication. Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73. Where the affidavit shows that the person upon whom service is to be made resides out of the state, it is not necessary to set forth that such person cannot, after due diligence, be found within the state. Parsons v. Weis, 144 Cal. 410; 77 Pac. 1007. While the pro- visions of this section for service upon non- residents by publication are general, and in terms apply to all actions, yet the section is not invalid because it includes proceed- ings purely in personam. Perkins v. Wako- ham, 86 Cal. 580; 21 Am. St. Rep. 67; 25 Pac. 51. A corporation is deemed to have departed from the state when all its agents and oflScers, upon whom service can be 307 SERVICE BY PUBLICATION — ORDER — AFFIDAVIT, AND CONTENTS. § 412 mafle, have departed therefrom. McKen- -drick V. Western Ziuc Mining Co., 16.5 Cal. 24; 130 Pac. 865. Actions relating to real estate. An ac- tion for the s[»ei-ific perforinaiice of a con- tract for the oonve3'ance of real estate is an action for the determination of a riglit or interest in real property. Tutt v. Davis, 13 Cal. App. 715; 110 Pac. 690. Service of process, in an action for the specific per- formance of a contract for the sale of real property, may be made by publication. Tutt V. Davis, 13 Cal. App. 715; 110 Pac. 690. In an attachment suit against a wife's separate estate, jurisdiction of her husband, as a co-defendant, may be ob- tained by publication of summons against him, where he cannot be personally served. Bank of Venice v. Hutchinson, 19 Cal. App. 219; 125 Pac. 252. Service on foreign corporation. Where a foreign corporation defendant has no agent in this state, service may be made upon the secretary of state. Olender v. Crvstalline Mining Co., 149 Cal. 482; 86 Pac. 1082. Service under McEnerney Act. The method of giving notice prescribed in this section is valid. Title etc. Restoration Co. V. Kerrigan, 150 Cal. 289; 119 Am. St. Rep. 199; 88 Pac. 356; 8 L. R. A. (N. S.) 682. Service under Torrens Act. Service of notice, under the Torrens Act, must be per- sonal, except where, under this section and § 413, post, service may be made by pub- lication. Robinson v. Kerrigan, 151 Cal. 40; 121 Am. St. Rep. 90; 12 Ann. Cas. 829; 90 Pac. 129. Order for publication. An order for the publication of summons will be upheld, where the necessary facts are set forth in the affidavit. Rue v. Quinu, 137 Cal. 651; 66 Pac. 216; 70 Pac. 732; Merchants' Nat. Union v. Buisseret, 15 Cal. App. 444; 115 Pac. 58; Emery v. Kipp, 1.54 Cal. 83; 129 Am. St. Rep. 141; 19 L. R. A. (N. S.) 983; 97 Pac. 17; Roberts v. Jacob, 154 Cal. 307; 97 Pac. 671; 223 U. S. 261; 56 L. Ed. 429; 32 Sup. Ct. Rep. 303. Otherwise, the trial judge does not abuse his discretion in re- fusing to make such order. Bender v. Hut- ton, 160 Cal. 372; 117 Pac. 322. Service in divorce cases. A provision for alimony, in a decree of divorce, ob- tained against a husband in another state, upon substituted service of summons, is void for want of jurisdiction of the hus- band. In re McMullin, 164 Cal. 504; 129 Pac. 773; Application of McMullen, 19 Cal. App. 481; 126 Pac. 368. Necessity of affidavit. Where the facts in the affidavit are sufficient to justify a finding, that the defendant cannot, after due diligence, be found within the state, an order of service by publication is proper. Merchants' Nat. Union v. Buis- seret, 15 Cal. App. 444; 115 Pac. 58. An affidavit for the publication of summons, in an action in which the complaint is not verified, must state probative facts upon which the court can ultimately conclude that a cause of action against defendant exists and that he is a necessary and proi)er ])arty. People v. Mulcahy, 159 Cal. 34; 112 Pac. 853. This section is not effective, unless strictly ]iursued. Ricket- son V. Richardson, 26 Cal. 149. A judg- ment by default, based on insufficient ser- vice by j>ublication, will be set aside on motion. Wilson v. Leo, 19 Cal. App. 793; 127 Pac. 1043. A money judgment can- not be rendered against a non-resident upon service by publication, where there is no showing of jurisdiction of the court over property of such non-resident within the state. Merchants' Nat. Union v. Buis- seret, 15 Cal. App. 444; 115 Pac. 58. The rendition of a judgment upon service by publication, where the affidavit is suffi- cient, is not a violation of any constitu- tional guaranty of due process of law. Roberts v. Jacob, 154 Cal. 307; 97 Pac. 671; 223 U. S. 261; 56 L. Ed. 429; 32 Sup. Ct. Rep. 303. Where the affidavit is insuffi- cient, an order for service by publication, inadvertently and improj^erly made, is properly quashed. Wilson v. Leo, 19 Cal. App. 793; 127 Pac. 1043. There is no pro- vision, in terms, in this section, that the date of the affidavit shall be disclosed therein, but it is indicated clearly that the affidavit must be presented and verified at the time of the application for the order. Bank of Venice v. Hutchinson, 19 Cal. App. 219; 125 Pac. 252. The plaintiff, to avail himself of constructive service of summons, must in fact have exercised due diligence: a mere formal compliance with the i^rovisions of the statute, or a state- ment to that effect in his affidavit, will not suffice. Stern v. .ludson, 163 Cal. 726; 127 Pac. 38. The affidavit must be filed before trial, and the order of publication may be made only upon a sufficient affi- davit, otherwise the court has no juris- diction; but, where the order is not void, the court cannot set it aside, except upon notice. Zumbusch v. Superior Court, 21 Cal. App. 76; 130 Pac. 1070. Contents of affidavit. An affidavit which fails to show whether the residence of the defendant was known to the plain- tiff, or that he did not know where he might be found, is insufficient. Braly v. Seaman, 30 Cal. 610. The facts set forth in the affidavit must show that due dili- gence was used to find the defendant within the state, and that he could not be found. Rue v. Quinn, 137 Cal. 651; 66 Pac. 216; 70 Pac. 732; Merchants' Nat. Union v. Buisseret, 15 Cal. App. 444; 115 Pac. 58. The affidavit must show with accuracy the efforts made to serve the defendant (Kahn v. Matthai, 115 Cal. 689; 47 Pac. 698); and such an inquiry should be shown as that the court may say that due diligence has been exercised (Roberts v. Jacob, 154 Cal. 307; 97 Pac. 671; Jacob v. Roberts, 223 412 MANNER OF COMMENCING CIVIL ACTIONS. 30& U. S. 261; 56 L. Ed. 429; 32 Sup. Ct. Rep. 303); but where the exercise of diligence was merely an inquiry of one friend of the defendant!^ as to his whereabouts, the showing is insufficient. Swain v. Chase, 12 Cal. 283. Where the defendant is alleged to be a non-resident, the affidavit need not show diligence. Anderson v. Goff, 72 Cal. 65; 1 Ani. St. Rep. 34; 13 Pac. 73; Parsons V. Weis, 144 Cal. 410; 77 Pac. 1007; John- son V. Miner, 144 Cal. 785; 78 Pac. 240. A showing that the defendant resides out of the state is sufficient. Furnish v. Mul- lan, 76 Cal. 646; 18 Pac. 854. Where the affidavit gives in detail the facts showing the attempts to serve the defendant in several counties specified, the court is au- thorized to infer diligence therefrom. Ligare v. California Southern R. R. Co., 76 Cal. 610; 18 Pac. 777; Chapman v. Moore, 151 Cal. 509, 513; 121 Am. St. Rep. 130; 91 Pac. 324. It is not required by this section that the affidavit shall state that the residence of the defendant is not known to the affiant (Ligare v. California Southern R. R. Co., 76 Cal. 610; 18 Pac. 777); but an affidavit in the language of the statute is not sufficient. Ricketson v. Richardson, 26 Cal. 149. Unless the affi- davit contains some evidence tending to establish every material jurisdictional fact, the judge has no legal authority to make the order. Forbes v. Hyde, 31 Cal. 342. The affidavit should be prepared with reference to the condition of things as they exist at the time the order for publication is made. Forbes v. Hyde, 31 Cal. 342; Cohn v. Kember, 47 Cal. 144. In a proceeding based upon constructive ser- vice, the conditions of the statute m.ust be strictly pursued. Cohn v. Kember, 47 Cal. 144. It is not required that it shall ap- pear that a writ of attachment has been levied as a preliminary step to the order of publication; the court may not require anything in addition to the requirements of the code. Johnson v. Miner, 144 Cal. 785; 78 Pac. 240. To authorize service by publication, it must appear that a cause of action exists against the defendant. Estate of McNeil, 155 Cal. 333; 100 Pac. 1086. Facts sufficient to constitute a cause of action must be shown, either by the complaint or the affidavit. Braly v. Seaman, 30 Cal. 610; Yolo County v. Knight, 70 Cal. 430; 11 Pac. 662; Colum- bia Screw Co. v. Warner Lock Co., 118 Cal. 445; 71 Pac. 498. Where no affidavit is filed, the complaint must be verified. People V. Mulcahy, 159 Cal. 34; 112 Pac. 853. Where the complaint is not verified, an affi'iavit, made by the attorney, in or- der to show the existence of a cause of action, must state that the facts are within his knowledge. Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445; 71 Pac. 498. Where the plaintiff is absent from the county, his attorney may make the affidavit, if the facts are known to him, and it may be made upon information and belief. Rue v. Quinn, 137 Cal. 651; 66 Pac. 216; 70 Pac. 732. An affidavit, by the attorney for the plaintiff, on informa- tion and belief, that the defendant is in, fact within the state, and conceals him- self to avoid service of summons, is only prima facie evidence of these facts; if untrue in point of fact, the defendant may, at any time, institute suit to set aside the judgment, on the ground of fraud. Ware v. Robinson, 9 Cal. 107. The ultimate facts of the statute are to be found from the probative facts in the affi- davit. Ricketson v. Richardson, 26 Cal. 149; Braly v. Seaman, 30 Cal. 610; Forbes V. Ilvde, 31 Cal. 342; Yolo County v. Knight, 70 Cal. 430; 11 Pac. 662. Where the affidavit is false, the judgment by de- fault is properly vacated. Dunlap v. Steere, 92 Cal. 344; 27 Am. St. Rep. 143; 16 L. R. A. 361; 28 Pac. 563; Fealev v. Fealey, 104 Cal. 354; 43 Am. St. Rep. Ill; 38 Pac. 49; Sullivan v. Lumsden, 118 Cal. 664; 50 Pac. 777; Par.sons v. Weis, 144 Cal. 410; 77 Pac. 1007. The judgment of the superior court imports absolute verity; and defects in or the insufficiency of the affidavits and order showing service by publication cannot be considered in a col- lateral attack upon a judgment which re- cites the service of summons by publica- tion. McCauley v. Fulton, 44 Cal. 355. The primary object and purpose of the signature of the officer to the jurat is to witness the signature of the affiant. Bank of Venice v. Hutchinson, 19 Cal. App. 219; 125 Pac. 252. An obvious mistake appear- ing in the jurat does not vitiate either the affidavit or the order. Bank of Venice v. Hutchinson, 19 Cal. App. 219; 125 Pac. 252. Where the date is omitted in the jurat, it will be presumed that the affidavit was made at the time of presentation, nothing to the contrary appearing. Banlc of Venice v. Hutchinson, 19 Cal. App. 219; 125 Pac. 252. Affidavit and order not part of judgment roll. People v. Thomas, 101 Cal. 571; 36 Pac. 9. Sufficiency of affidavit. Roberts v. Jacob, 154 Cal. 307; 97 Pac. 671. Showing of diligence necessary. Chap- man v. Moore, 151 Cal. 509; 121 Am. St. Rep. 130; 91 Pac. 324. Constructive or substituted service on resident in action in personam as due process of law. See note 35 L. R. A. (N. S.) 292. CODE COMMISSIONERS' NOTE. 1. Applica- ble to corporations. This section would have been applicable to corporations without specially men- tioning them, the word "person" covering artifi- cial as well as natural persons. See Douglass v. Pacific Mail S. S. Co., 4 Cal. 304. 2. Section to be strictly pursued. It has been held that the sections providing for the service of summons on a defendant by publication, were in derogation of the common law, and must be strictlv pursued. Ricketson v. Richardson, 26 Cal. i.52; Jordan v. Giblin, 12 Cal. 102; Braly V. Seaman, 30 Cal. 617; Forbe.s v. Hyde, 31 Cal. 342; People v. Huber, 20 Cal. 81; McMinn v. Whelan, 27 Cal. 309; but see § 4, ante, and see Hahn v. Kelly, 34 Cal. 391 ; 94 Am. Dec. 742. 309 SERVICE BY PUBLICATION — ORDER — AFFIDAVIT, AND CONTENTS. § 412 3. Requisites of affidavit for order of publi- -cation. Sections 412 and 413 treat of the same geiieial suliject. ami they must be read toKetlier, ior tlie purpose of ascertahiiug what the altida- vit and order sliould contain, in order to satisfy the law and make the service complete. It must appear from the alhdavit that the person upon whom service is to be made either resides out of the state or has departed from the state, or cannot, after due diligence, be found within the -State; or that he conceals himself to avoid ser- vice, and tliat tlie plnintiff has a cause of action against him; or that he has a cause of action, to the complete determination of which he is a necessary or proper party; and also whether his residence is known, and if known, it should be stated. An affidavit which merely repeats the language or substance of the statute is not sutii- cient. Unavoidably, the statute cannot go into details, but is compelled to content itself with a statement of the ultimate facts, which must be made to appear, leaving the detail to be sup- plied by the affidavit from the facts and circum- stances of the particular case. Between the stat- ute and the atlidavit there is fi relation which is analogous to that existing between a pleading and the evidence which supports it. The ulti- mate facts of the statute must be proved, so to speak, by the affidavit, by showing tha probatory facts upon which each ultimate fact depends. These ultimate facts are conclusions drawn from the existence of other facts, to disclose which is the special office of the affidavit. To illustrate: It is not fcuflicient to state generally, that, after' due diligence, the deieudant cannot be found ■within the state, or that the plaintiff has a good cause of action against him, or that he is a necessary party; but the acts constituting due diligence, or the facts showing that he is a neces- sary party, should be stated. To hold that a bald repetition of the statute is sufficient, is to strip the court or judge to whom the application is made of all judicial functions, and allow the party himself to determine, in his own way, the existence of jurisdictional facts, — a practice too dangerous to the rights of defendants to admit •of judicial toleration. The ultimate facts stated in the statute are to be found, so to speak, by the court or judge from the probatory facts stated in the affidavit, before the order for publi-; cation can be legally entered. The affidavit must show whether the residence of the person upon whom service is sought is known to the affiant, and if known, the residence must be stated. It is true that this is not required, in terms, in § 412, which is more especially devoted to the affidavit; but, as we have already said, the whole statute upon the subject of service by publica- tion is to be read together, and § 41.3 requires that, where the residence is known, the order shall direct a copy of the summons and com- plaint to be forthwith deposited in the post- office, directed to the person, to be served at his place of residence. In granting th^ order, the court or judge acts judicially, and can know nothing about the facts upon which the order is to be granted, except from the affidavit presented by the applicant. Ricketson v. Richardson, 26 Cal. 152. See also Brady v. Seaman, 30 Gal. 617; Jordan v. Giblin, 12 Cal. 100. 4. Affidavits to obtain order of publication, ■what facts must be stated therein. Section 412 provides, that "When the person on whom the service is to be made resides out of the state, . . . and the fact shall appear by affidavit to the satisfaction of the court, or a judge thereof, . . . such court or judge may grant an order that the service be made by publication of sum- mons." The fact must appear by affidavit, be- fore jurisdiction to make the order attaches. That is to say, there must be an affidavit con- taining a statement of some fact ^'hich would Toe legal evidence, having some appreciable ten- dency to make the jurisdictional fact appear, for the judge to act upon, before he has any juris- diction to make the order. Unless the affidavit contains some such evidence, tending to establish every material jurisdictional fact, the judge has no legal authority to be satisfied, and. if he makes the order, he acts vrithnut jurisdiction, and all proceedings based upon it are void. But lie is only tn be satisfied upon some evidence presented in the form prescribed : and if the affi- davit presents legal evidence which has an ap- preciable tendency to prove every material juris- dictional fact, and the mind of the judge is too easily satisfied, this is but error, for he was authorized to weigh the testimony, and if satis- fied, make the order. It is therefore not void, but erroneous. Forbes v. Hyde, 31 Cal. 3.')0. 5. Affida-vit must sho^w cause of action. Tlie statute provides that "When the person on whom the service is to be made resides out of the state, . . . and the fact shall appear by affidavit, . . . and it shall in like manner appear, 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, such court or judge may grant an order," etc. The existence of a cause of action, etc., then, is also a jurisdictional fact which must ap- pear "in like manner," that is to say, by affida- vit. The statute as clearly makes a cause of action, as non-residence, a jurisdictional fact, and we can no more disregard the one than the other. If this fact does not appear by the affi- davit upon which the order for publication was founded, then there was a want of jurisdiction, and the order and publication are void. The only statement in the affidavit is the following: "Deponent further says, that he is a counselor at law and resides in this city, and that he has a good cause of action in this suit against the said defendant, and that he is a necessary and proper party defendant thereto, as he verily be- lieves." What "fact appears by affidavit" here? Simply that the affiant believes he has a good cause of action in this suit against defendant, and believes that Harris is a necessary and proper party defendant. But such an averment is neither the statement of an ultimate fact, such as is required to be stated in a pleading, nor of a probative fact from which such ultimate fact may be deduced, nor a fact of any sort which in any way legally tends to prove such ultimate or probative fact, or from which it may be inferred. It is not the statement of a fact at all. It is merely the statement of the opinion of the wit- ness in relation to a point upon which the judge is required to form his own opinion upon facts which must appear by affidavit. The judge may have entire confidence in the ability of the affi- ant as a lawyer, and in his opinion upon a ques- tion of law, and the witness may be equally well qualified to determine the point; but the law does not permit him to act upon such confidence or qualifications. Facts are the proper, and only proper, subjects to be set out in affidavits, un- der the provisions of the statute, to serve as the basis of judicial action. The affiant's general expression of opinion or belief, without the facts upon which it is founded, is in no sense legal evidence, and does not tend, in any degree, to prove the jurisdictional facts, without which the judge had no authority to make the order. Forbes v. Hyde. 31 Cal. 3.53. Under this sec- tion of the code, the complaint, if verified, may be used to show that a cause of action exists. 6. Affidavit that defendant was concealing him- self. Could not be found after due diligence, etc. An affidavit of an attorney for the plaintiflf, for an order of publication of summons on de- fendant, which shows that diligent search had been made for him by the sheriff, and that ho was concealing himself to avoid service, was held to be sufficient. Anderson v. Parker, G Cal. 201. Tlie affidavit states that the defendant. D. C. Seaver, was at the time a resident of the first township, in the county of Contra Costa; that he had occupied a house on a tract of land claimed by him to be his own and which he had culti- vated up to the commencement of the suit, and for a long time previous; that on the twenty- second day of October, the day before the com- mencement of the suit, he left his residence, in- forming his servants that he would be back that evening or the next day; that the summons in the suit was put in the hands of a proper con- stable, who made diligent search and was wholly unablfi to serve it; that Seaver had not returned to his residence, and that he believed he con- cealed himself for the purpose of avoiding the service of the summons; and that the claim sued on is a just debt. The return of the summons by the constable is, "Not found in the county." The return of the officer, that the party could not be found, is sufficient evidence of proper dili- gence, and the affidavit of the plaintiff in that action, showing that the defendant resided in the township and county, and the facts respect- ing his absenting himself from his home, show sufficient to entitle the plaintiff to the order of §413 MANNER OF COMMENCING CIVIL ACTIONS. 3ia publication. Seaver v. Fitzgerald, 23 Cal. 90. An affidavit for order of publication of sum- mons, stating that defendant C. could not, after due diligence, be found in the county; that in- quiry h;id been made of one F., an intimate friend of defendant, as to his whereabouts, and F. was unable to give the information; and that plaintiff did not know where defendant could be found within the state, — was held to be insuffi- cient. The affidavit does not show that defend- ant had left the state, or that any diligence had been used to ascertain his whereabouts, beyond inquiry of a single individual, and no pretense was made that defendant was concealing himself to avoid service. Swain v. Chase, 12 Cal. 285. 7. Residence, when known, to be stated. Resi- dence, if known, should be stated in the affidavit. Gray v. Palmer. 9 Cal. 637. 8. Afiidavit made a long time before order of publicf.tiou. Objection was mode that it was in- competent for the court to make the order upon aindavits some four months old — it is plain, to our minds, from an examination of §§412 and 413 of the code, that the affidavits should be pre- pared with reference to the condition of things as they exist at the time when the order for publication is applied for — the residence of the dei'endanf, or the inability to find him ^t that time. The proceedings are to follow each other in reasonably quick succession. The order for publication, when made, must "direct a copy of the summons and complaint to be forthwith de- posited in the post-office, directed to the person to be served, at his place of residence," when known. It must not only be deposited, but it must be done forthwith. The object of the stat- ute is, if possible, to secure actual notice of the pendency of the action. In this and the neigh- boring states and territories, the residences of a- large portion of the people are notoriously 'tem- porary. It is important, therefore, that the in- quiry as to residence should be directed to the time when the order and deposit in the post- office is to be made; and we have no doubt that it was so intended by the legislature. If an affi- davit can be used as the basis of an order which was made four months before the order, it can be used when made four years before; and in both cases there would be great probability that the notice contemplated by the statute woiild fail of reaching the defendant. In many in- stances the party to be served may have returned, and could be easily, if inquiry were to be made at a later period. In People v. Huber, 20 Cal.. 82, the court say: "The Practice Act contem- plates that the judge must be satisfied, by affi- davit, of the absence of the defendant at the time when he is applied to for his order, and when it is to take effect. If an order might be procured in advance, and held four days before taking out the summons, it might be so held for a much longer tin»e, and so that when the sum- mons actually issues the defendant may have re- turned to the state." We have no doubt of the correctness of this view. If the question were presented to us on appeal from the judgment, we should not hesitate to reverse it, on the ground that the affidavits, made so long a time before obtaining the order for publication based on them, would be totally insufficient to show a non-re.sidence, or absence from the state, or that the defendant could not, after due diligence, be found within the state at the time of procuring the order. Forbes v. Hyde, 31 Cal. 351. § 413. Manner of publication. The order must direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed rea- sonable, at least once a week ; but publication against a defendant residing out of the state, or absent therefrom, must not be less than tw^o months. In case of publication, where the residence of a non-resident or absent defend- ant is known, the court or judge must direct a copy of the summons and complaint to be fortlnvith deposited in the post-office, directed to the person to be served, at his place of resideuce. Yv^hen publication is ordered, per- sonal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post-office, and in either ease the service of the summons is complete at the expiration of the time pre- scribed by the order for publication. Publication. 1. Proof of. Post, §§ 2010, 2011. 2. Of summons, in suit to quiet title, man- ner of. See post, §§ 749, 750. Judgment by default. Post, § 585, subd. 3. Legislation § 413. 1. Enacted March 11, 1872; identical with Practice Act, § 31 (New York Code, § 135), as amended bv Stats. 1871-72, p. 190. 2. Amended by Code Amdts. 1873-74, p. 299, (1) adding the word ".".nd" before the words "in either case," which, in the original, began a sentence; and (2) omitting after "order for publication" (the end of the present section) the sentence, "In actions upon contracts for the direct payment of money, the court in its dis- cretion may, instead of ordering publication, or may after publication, appoint an attorney to appear for the nonresident, absent, or concealed defendant, and conduct the proceedings on his part." 3. Amendment by Stats. 1901, p. 131; un- constitutional. See note ante, § 5. Constructive service. The power of the legislature to provide for constructive ser- vice of process is well settled. Eitel v. Foote, 39 Cal. 439; (r.-ill v. Poso Irrigation Dist., 87 Cal. 140; 26 Pac. 797. The order of publication. Where the affidavit is sufficient to sustain the order, it is immaterial that the ,iudge had other sources of information (Ligare v. Califor- nia Southern R. E. Co., 76 Cal. 610; 18 Pac. 777), but the order must be based solely on facts stated. Ricketson v. Rich- ardson, 26 Cal. 149. The provision that the order must direct a copy to be depos- ited in the post-office, where the residence of a non-resident or absent resident is known, is applicable only in these cases. Ligare v. California Southern R. R. Co.,. 76 Cal. 610; 18 Pac. 777. Where the affi- davit shows that the residence of the per- son to be served is known, the court must also direct a cojiy of the complaint to be deposited in the post-office, directed to him, at such place of residence; and it must appear that this direction has been complied with. Parsons v. Weis, 144 Cal. 410; 77 Pac. 1007. The deposit of sum- mons and complaint may be made in any 311 SERVICE BY PUBLICATION — EFFECT OF — DEPOSIT OF COPY. §413 post-office. Mudge v. Steinhart, 78 Cal. 34;. 12 Am. St. Kep. 17; 20 Pac. 147. Where the plaintiff fails to procure the service within the time fixed for its re- turn, he is entitled to a new summons, and a continuance of the case until he can pro- cure service, by publication or otherwise. Seaver v. Fitzgerald, 23 Cal. 83. Personal service out of the state. Per- sonal service out of the state may be made, only after publication has been or- dered. McBlain v. McBlain, 77 Cal. 507; 20 Pac. 61. To be effective, this section must be strictly pursued. Ricketson v, Eichardson, 26 Cal. 149. Sufficiency of affidavit. San Diego Sav, Bank v. Goodsell, 137 Cal. 420; 70 Pac. 299. The publication. Publication affects only the service of summons, and the defendant has forty days to answer after the lapse of the period of publication. Grewell v. Henderson, 5 Cal. 465; Stearns v. Aguirre, 6 Cal. 176. A publication once every week, for fourteen weeks, consecutively, answers the reciuirement of an order for publication for the period of three cal- endar months. Savings and Loan Society V. Thompson, 32 Cal. 347; Derby & Co. v. Modesto, 104 Cal. 515; 38 Pac. 900. Where, at the time of the institution of the suit, and for several days afterwards, the de- fendant was a resident of the state, but at the time of filing the affidavit he was beyond its limits, a publication for the period of thirty days was insufficient, where the statute required three months. Jordan v. Giblin, 12 Cal. 100. A publica- tion against a defendant residing out of the state, or absent therefrom, must not be less than two months, and thirty days must elapse after that time, before default" can be taken. Foster v. Vehmeyer, 133 Cal. 459; 65 Pac. 974. Where, pending publication, an order is made, substituting attorneys, the publication maj^ be com- pleted as commenced, with the original at- torney's name indorsed on the summons. Dunlap v. Steere, 92 Cal. 344; 27 Am. St. Eep. 143; 16 L. R. A. 361; 28 Pac. 563. Publication made in a daily paper, regu- larly issued on Sundays, does not vitiate the service, on the ground that Sunday is dies non. Savings and Loan Society v. Thompson, 32 Cal. 347; Derby & Co. v. Modesto, 104 Cal. 515; 38 Pac. 900; Smith V. Hazard, 110 Cal. 145; 42 Pac. 465. That the paper designated is the one most likely to give notice to the person to be served, need not be stated in the order. Seaver V. Fitzgerald, 23 Cal. 85. Deposit of copy in post-office. The sum- mons must not only be deposited, but it must also be done "forthwith" (Forbes v. Hyde, 31 Cal. 342); that is, as soon as, by reasonable exertion, it may be, which will vary according to the circumstances of each particular case; like the term "immediately," "forthwith" is not, in law, necessarily construed as the time immedi- ately succeeding, without an interval, but an effectual and lawful time, allowing all the adjuncts and accom])lements necessary to give an act to be performed full legal effect. Anderson v. Ggff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73. Where the de- posit of a copy is made on the day the order is signed, the omission therefrom of the word "forthwith," does not render the proceedings void, where the jurisdictional facts are stated. Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73. CODE COMMISSIONERS' NOTE. 1. Addi- tional requirements under Statute 1871-72. The legislature of 1871-72 pa.ssed the folIowiriK act : Stats. 1871-72, p. 392. "An Act concerning sc r- vice of summons upon absent defendants by pub- lication." Approved March 15, 1872. [Quoting the act.] 2. Form of order for publication. When it may be issued, and what facts must be stated. An order to publish a summons cannot be niailo in advance of tlie issuance of the summons. If, after complaint filed, and before any summons was issued, the judge ordered that "summons do is- sue," and that it be published, and without any further order summons was subsequently issued and published, the court did not require juris- diction, and the order was a nullity. A judge cannot order a summons to issue, but can only order a summons already issued to be served in a special manner. People v. Huber, 20 Cal. 81. 3. Publication of summons on supplemental complaint, where summons was published on original complaint. If an order is made for pub- lication of summons, and a summons is issued, and a supplemental complaint was afterwards filed and a summons issued thereon, the original action becomes merged in the action as supple- mented, and tlie court will not acquire jurisdic- tion of the person of absent defendants by publication of the original summons, but the- summons issued on the supplemental complaint must be published also. McMinn v. Whelan, 2 7 Cal. 300; see also Forbes v. Hyde, 31 Cal. 342; People V. Huber, 20 Cal. 81; see also Lawrence V. Bolton, 3 Paige, 295; Scudder v. Voorhis, 1 Barb. 55. 4. Order designating newspaper need not state what. Tlie order of publication is not defective because in designating the newspaper in which to publish the summons, it did not state that such paper was "most likely to give notice to the per- son to be served," or which summons was to be thus published. The order directs the summons to be published in a certain newspaper, with the time it was to be thus published, and the pre- sumption is, that the justice designated such particular paper because it was most likely to give notice to the person to be served, but it was not necessary for him to state in the order that such was his reason. Seaver v. Fitzgerald, 23 Cal. 91. 5. Published summons must agree with origi- nal summons. The summons cannot be altered, and no new matter can be interpolated, after the order for its pulilication is made. It must be published in the form in which it existed when the order for its publication was made. McMiun V. Whelan, 27 Cal. 314. But if a comparison of the published summons w'ith the original shows that the difference between the two are purely literal, and the sense and meaning of the original and of the published version of the summons are identical, that is enough. Sharp v. Daugney, 33 Cal. 513. 6. Constitutionality of section, so far as it re- lates to appointment of attorney, etc. It has been contended tliat this section, so far as it allows the court to appoint attorneys for defend- ants in lieu of publication, was "unconstitutional and against the principles of free government," under the provision in the constitution, that no person shall "be deprived of life, liberty, or prop- erty without due process of law." But the con- Btitutionality of this section was upheld by the court, in Ware v. Robinson, 9 Cal. 111. 7. When the court may appoint attorney. If the defendant is rnncealed for the purpose of avoiding service. See Ware v. Robinson. 9 Cal. §414 MANNER OF COMMENCING CIVIL ACTIONS. 312 107. "Where the defendant cannot, after due diligence, be found. See Jordan v. Giblin, 12 Cal. 100 See also, as to judgment against detend- ants iu such cases, § 473, post, where, within six months of rendition of judgment, the court may allow defendant to answer to the merits of ■original action; and in this connection see Jor- dan V. Giblin, 12 Cal. 100. 8. How time of publication is computed... I'ormerly, publication was required (against a lion-resi'dent of the state) to be at least once a week, and for a time "not less than three miinths." Under the law as it then stood, it was held that a summons published "from the 10th of January to the 9th of April, inclusive," *as pub- lished for the period of three full calendar months. The 9th of January and the 10th of April cannot be included. The summons had been published for three calendar months at the close of the 9th day of April, and the first day of the forty within which defendant was required to answer was on the 10th of April. Savings and Loan Society v. Thompson, 32 Cal. 350. AVhere the last day of the publication of a sum- mons occurs in the same week in which the three months expires, the publication was held to have been made for a sufficient time, and the court Tias acquired jurisdiction, although this day is not fully three months from the first day of pub- lication. Savings and Loan Society v. Thompson, 32 Cal. 352 ; see also Ronkendurff v. Taylor's Lessees, 4 Pet. 361; 7 L. Ed. 886. The month contemplated by this section (§413) is a calen- dar, not a lunar, month. Savings and Loan Society v. Thompson, 32 Cal. 350; Sprague v. Korway. 31 Cal. 173; see § 17, ante, subd. 6. 9. Mailing summons and complaint, directed to residence of defendant. If the residence of a non-resident of the state or an absentee is known, a copy of the complaint and summons must be put into the post-office, directed to such defendant at his place of residence, and this is the ca.ie also as to an infant tinder the age of fourteen years. Gray v. Palmer, 9 Cal. 638. 10. Defendant has forty days after last day of publication to answer. The defendant, after the last day of publication, has forty days in which to file answer. Service of summons is complete at the expiration of the period of publication, and the time for answering commences to run at that time. Grewell v. Henderson, 5 Cal. 465; see also Savings and Loan Society v. Thompson, 32 Cal. 352. 11. Justices' practice. Order of publication made by justice of the peace. This and the fol- lowing section are made specially applicable to justices' courts. See § 849, post. Section 845, post, relating to practice in justices' courts, fixes twelve days as the time within which summons must require defendant to answer; but § 849, by permitting service to be made lay publication, necessarily requires that the time should exceed ten days, and that the provisions of this section (§ 412) and the following section (§ 413) should be pursued in justices' courts. Hisler v. Carr, 34 Cal. 646; see also Seaver v. Fitzgerald, 23 Cal. 86. 12. General effect of judgment obtained by publication of summons, etc. A judgment ob- tained by publication of summons against a de- fendant out of the state in which the judgment is rendered, though it may be enforced against his property in that state, has no binding force in personam, and is a mere nullity when at- tempted to be enforced in another state. Kane V. Cook, 8 Cal. 449; see note to § 415, post. 13. When judgment may be attacked for defect in affidavit or order for publication. See the very elaborate opinions in the case of Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, contained in note to §415, post; also Jordan v. Giblin, 12 Cal. 100; People v. Huber, 20 Cal. 81; Forbes v. Hyde, 31 Cal. 342; Braly v. Seaman, 30 Cal. 610. § 414. Proceedings where there are several defendants, and part only are served. When the action is against t'^vo or more defendants jointly or sev- erally liable on a contract, 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 manner as if they were the only defendants. Joining persons severally liable upon instru- Cal. 577; 23 Pac. 198. In an action against a married woman, the husband is a necessary party defendant, and must also be served; he is joined solely for .the protection of the v^if e. McDonald v. Porsh, 136 Cal. 301; 68 Pac. 817. The bringing of an action against all the guarantors upon a joint and several obligation is not a waiver of the right to their several liability, although judgment is obtained against some, and others have not been served. Melander v. Western National Bank, 21 Cal. App. 462; 132 Pac. 265. Service on all essential to a several judgment. Service upon all the defend- ants, whether charged as joint or several debtors, is essential to the validity of a several judgment against each. Treat v. McCall, 10 Cal. 511; Bowen v. May, 12 Cal. 348; Schloss v. White, 16 Cal. 65. Where only one of two defendants, jointly indebted, is served, a several judgment may be entered against him. Hirsehfield V. Franklin, 6 Cal. 607. In an action against partners, the plaintiff may proceed against the defendants alone who are served; to sustain a judgment against a defendant, he must have been served with l^rocess, or brought into court through some form of law. Ingraham v. Gilde- meester, 2 Cal. 88; Schloss v. White, 16 meuts. Ante. § 383. Judgment against some defendants, proceedings continuing against others Post, § 579. Joint debtors, proceedings against, after Judg- ment against some. Post, §§ 989 et seq. Legislation § 414. Enacted March 11, 1873; based on Practice Act, § 32 (New York Code, § 135), which read; "Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: 1. If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the sepa- rate property of the defendant served; or, 2. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants." Construction of section. This section does not apply to actions for the foreclo- sure of mortgages on real estate. Bowen v. May, 12 Cal. 348. Defendants jointly and severally liable. In an action against two or more defend- ants, the plaintiff, failing to make out the joint liability of all, may take judgment against one or more. Rowe v. Chandler, 1 Cal. 167; Sterling v. Hanson, 1 Cal. 478; Lewis V. Clarkin, 18 Cal. 399; People v. Prisbie, 18 Cal. 402; Shain v. Forbes, 82 313 JUDGMENT, WHERE ALL NOT SERVED — PARTNERSHIPS. §414 Cal. 65. In an action against three co- partners, where one did not apj)ear, and no default was entered against him, and it appeared that he died after the action was commenced, the verdict should have been entered only against the others, who an- swered; if he was served and failed to answer, his default should have been regu- larly entered; if he was not served, the action should have regularly proceeded against the defendants who were served, or who api)eared and answered. Alpers v. Schammel, 75 Cal. 590; 17 Pac. 708. At common law, where a joint action was brought against several defendants, and one of them was not served, no judgment could be effective against the rest until such defendant was driven to outlawry. Stearns v. Aguirre. 6 Cal. 176. Proper judgment, where all not served. In an action upon a joint and several promissory note, where one of the defend- ants makes default, and the other answers, it is error to enter final judgment against the defaulting defendant, pending the proceeding. Stearns v. Aguirre, 6 Cal. 176; Ware v. JRobinson, 9 Cal. 107. When the action is against several defendants jointly, only a portion of whom are served, judgment may be taken against those who are served, and proceedings afterwards had against those not served. Roberts v. Donovan, 70 Cal. lOS; 9 Pac. 180; 11 Pac. 599. In an action against defendants sev- erally liable, the clerk may, upon the ap- plication of the plaintiff, enter judgment, upon default, against the parties served, without regard to the other parties named in the complaint. Kelly v. Van Austin, 17 Cal. 564. In an action against several de- fendants on their joint contract, for the recovery of damages only, the clerk has power to enter the separate defaults of those defendants who have been served and have not answered, and to enter a joint judgment by default against all of those served, although other of the defend- ants have not been served; but he has no power to enter a judgment by default against a part only of the defendants, who have been served and have not answered. Wharton v. Harlan, 68 Cal. 422; 9 Pac. 727. In an action on a joint demand against two defendants, where service was made on one, who answered, but service was not made on the other, who did not appear, judgment entered against the former is not void. Kelly v. Bandini, 50 Cal. 530. In an action against defendants jointly and not severally liable, where all are not served, the clerk may, upon appli- cation of the plaintiff, enter judgment against all, to be enforced against the joint property of all, and the separate property of those served; entry in any other form is unavailing for any purpose. Kelly V. Van Austin, 17 Cal. 564; Wallace V. Eldredge, 27 Cal. 495; and see Glidden V. Packard, 28 Cal. 649; Willson v. Cleave- land. 30 Cal. 192; Welsh v. Kirkpatrick, 30 Cal. 202; 89 Am. Dec. 85; Providence Tool Co. V. Prader, 32 Cal. 634; 91 Am. Dec. 598; Sacramento County v. Centra! Pacific K. R. Co., 61 Cal. 250; .Tunkans v. Bergin, 64 Cal. 203; 30 Pac. G27; Reinhart v. Lugo, 86 Cal. 395; 21 Am. St. Rep. 52; 24 Pac. 1089; Lacoste v. Eastland, 117 Cal. 673; 49 Pac. 1046; Kennedy v. Mulligan, 136 Cal. 556; 69 Pac. 291. "The party not served is not a proper party defendant in an action on the judgment against the party served. Tav v. Hawlev, 39 Cal. 93; Stewart v. Spaulding, 72 CaL 264; 13 Pac. 661; Cooper v. Burch, 140 Cal. 548; 74 Pac. 37. In an action against two or more de- fendants, where all are not served, the judgment must bind the joint property of all. Bovven v. May, 12 Cal. 348. Where the action is upon a joint and several con- tract, the court may proceed against one defendant, who voluntarily appears, and render judgment against him. Bell v. Adams, 150 Cal. 772; 90 Pac. 118. In an action against the defendants jointly, on a joint and several obligation, the entry of final judgment, upon default, against one. Is a discharge of the other. Stearns v. Aguirre, 6 Cal. 176. In an action against two partners, both of whom were served, where the answer denied the indebtedness, and the plaintiff failed to establish a joint indebtedness, a verdict in favor of one and against the other is valid. Rowe v. Chan- dler, 1 Cal. 167. In an action against co- partners, in which all the individuals composing the firm are set forth, in the complaint and summons, judgment cannot be rendered against those who have not been served and who do not appear. Davidson v. Knox, 67 Cal. 143; 7 Pac. 413; Feder v. Epstein, 69 Cal. 456; 10 Pac. 785. Evidence that an action is against the in- dividual members of a partnership, doing business under a particular firm name, can- not serve as an allegation of that fact. San Francisco Sulphur Co. v. JEtn& In- demnity Co., 11 Cal. App. 695; 106 Pac. 111. If a complaint is against persons in- dividually named, the addition of words describing a partnership cannot make the partnership described a party defendant to the action. Maclay Co. v. Meads, 14 Cal. App. 363; 112 Pac. 195. A partnership is properly sued, where the action is ex- pressly brought against it as such. Maclay Co. V. Meads, 14 Cal. App. 363; 112 Pac. 195. CODE COMMISSIONERS' NOTE. 1. Construc- tion of section generally. Section 32 of the Practice Act, from which this section is taken, reads as follows: "§32. Where the action is against two or more defendants, and the sum- mons is served on one or more, but not on all of them, the plaintiff may proceed as follows: 1. If the action be aeainst the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment, it may be 414 MANNER OF COMMENCING CIVIL ACTIONS. 314 entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the sepa- rate property of the defendant served; or, 2. If the action be apainst defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only de- fendants." This section provides that: "If the action be against defendants jointly indebted upon a contract, he may proceed against the defend- ants served, unless the court otherv^ise direct," — that is to say, unless the court requires the other defendants to be served before proceeding to trial and judgment. If he does "proceed against the defendants served," the section provides that he shall take judgment: against all of the defendants, to be enforced against the joint property of all the defendants, and the separate p"roperly of those served. By the terms of the statute, the plain- tiff proceeds only against the defendants served, and judgment is entered against them, but not against those who were not served. The defend- ants not served are not bound by the judgment, nor are they personally liable for its satisfaction; but the statute provides that the property in which they are jointly interested with the other defendants may be taken in execution for the satisfaction of the judgment. This provision of the statute will hereafter be noticed. When cases involving this or similar provisions of the stat- utes of other states have been under considera- tion, it has been repeatedly held that the statute changed the common-law rule, which is, that, in- an action upon a joint contract, the plaintiff must recover against all or none. People v. Frisbie, 18 Cal. 402; Lewis v. Clarkin, 18 Cal. 399. The language of those cases clearly indicates that, under the statutory rule, the plaintiff' may re- cover upon a joint contract against one, or any number less than all of the joint debtors, that is to say, he may take judgment in the usual form against those served, and, in addition, the judgment may be enforced against the joint prop- erty of all the joint debtors. But the judgment is against those only who were served with pro- cess. The statute provides that the "joint prop- erty" of all the defendants may be taken in exe- cution for the satisfaction of the judgment, but none of the cases in this court defines such joint property. We have not noticed in any of the cases in New York that the question has been distinctly passed upon as to what property con- stitutes the "joint property" mentioned in the statute ; but it is assumed in several cases that it is partnership property which is meant by that term. Mason v. Denison, 15 Wend. 64; Mervin v. Kumbel, 23 Wend. 293; Sterne v. Bentley. 3 How. Pr. 331. In Mason v. Denison, it is said that the term applies to the property which one defendant might apply to the satisfaction of the debt, without consulting his co-contractor. Ac- cepting the restriction indicated in that case, or even limiting the meaning of "joint property" to partnership property of the persons alleged to be joint debtors, we are utterly unable to see how a judgment that is to be enforced against the interest in such property of a person who has not been served with process, and has not appeared in the action, can be maintained. It is a cardinal principle of jurisprudence, that a judgment shall not bind or conclude a man, either in respect to his person or property, un- less he has had his day in court. No person shall be deprived of life, liberty, or property without due process of law, says the constitu- tion; but this principle is older than written con- stitutions, and, without invoking the constitu- tional declaration, every person may, as a matter of common right, insist that he be heard in his own defense before judgment passes which binds, charges, or injuriously affects his person or his estate. It is no answer to say that the judg- ment affects only the joint property of the de- fendants, — property that either of the debtors might apply to the satisfaction of the common debt, — for that assumes that the defendants are j )int debtors, and that may be to the defendant who is not served the vital point of the contro- versy. He may be ready to admit every allega- tion of the complaint, except that he is a party to the contract; or he may even admit the con- tract, and yet be ready, if an opportunity were presented, to make a successful defense, on the ground of fraud, failure of consideration, pay- ment, accord and satisfaction, etc. The defend- ant who is served may be ignorant of the defenses upon which his co-defendants would rely; or he may, either negligently or purposely, omit to present them. And, whatever his answer may be, he only appears for himself; and there is nothing in the law regulating the acquisition or disposition of joint property which confers upon . one joint owner the right to defend actions for his fellows. Unless it can be shown that such property is under the ban of law, a judgment which subjects to execution the interest of a person who has no opportunity to be heard in the action cannot be upheld without violating prin- ciples which lie at the base of all judicial pro- ceedings. Tay v. Hawley, 39 Cal. 95. 2. Constitutionality of section. See note 1. There have been several cases in this court in- volving the consideration of this statute, and this question does not seem to have been presented or considered, but the validity of the statute seems to have been tacitly assumed. In New York the validity of a similar statute is recog- nized, and actions on the judgment have been maintained against the defendants not served. Dando v. Doll, 2 Johns. 87; Bank of Columbia v. Newcomb, 6 Johns. 98; Taylor v. Pettibone, 16 Johns. 66. In the subsequent case of Mer- vin V. Kumbel, 23 Wend. 293, it was considered that the authority of those cases was binding upon the coart; but it is evident from the opin- ions delivered in the case, and particularly that of Mr. Justice Bronson, that the judgment, so far as it aft'ects the defendants not served, can- not be sustained on any sensible or even plausi- ble ground. To say that a person is liable to an action on a judgment, but that he may, in that action, litigate the cause of action upon which the judgment was rendered — to hold that he may be sued upon the judgment, but that if he pleads the proper matters in defense, the judg- ment is not even prima facie evidence against him — is, to our minds, altogether unsatisfactory and illogical. There is a further ground for hold- ing that the defendant who was not served ia not a proper party to an action on the judgment. Provision is made in the code, by which a de- fendant who was not originally served with the summons may be bound by the judgment. (§§ 989 to 994.) He is summoned to show cause why he should not be bound by the judgment, and he may answer the complaint, as he might have done had he been originally served, or he may deny the judgment, or may set up any defense that may have arisen subsequently to the judgment. These proceedings furnish, in our opinion, the exclusive mode by which he can be bound by the judgment, and they necessarily imply that he is not already bound by it. The action is really an action on the original joint contract, and matters of defense in respect to the judgment are merely incidental to the action, ^\'ere it not for the statute, no action could be maintained against him on the contract, for the reason that it would become merged in the first judgment; and the merger is restrained, only for the purpose and to the extent of enabling the proceedings to be had as prescribed in the statute. Those provis- ions of the statute are useless if it is true that an action can be maintained on the judgment against a defendant not served in the former ac- tion. Tay V. Hawley, 39 Cal. 97. 3. Personal judgment cannot be entered against one of several defendants jointly liable. In an action against defendants jointly liable, it was held to be errur to enter a personal judgment asainst one of the defendants who was not served with process. Treat v. McCall, 10 Cal. 512. And where all defendants were jointly liable and all served, judgment by default cannot be entered against one of them. This section of the code 315 SERVICE — PROOF, HOW MADE — RETURN BY SHERIFF. §415 applies only where all of the defendants have not been served. Stearns v. Agnirre, 7 Cal. 419. 4. Section not applicable to foreclosing suits. It was held that this iirovision, which, in an ac- tion against two or more defendants, all of whom ■were not served with process, authorized judg -inent to be entered to bind the joint property of all, did not apply to proceedinsrs for the fore- -closuro of a mortgage upon real estate. Bowen v. May, 12 Cal. 351. 5. Appearance recited in record confined to par- ties served. Where the record recites, in general terms, the appearance of the parties, such api)rar- tince will be confined to those parties served with process. Miller v. Ewing, 8 Smcdes & M. 4'2 1'. Torrey v. Jordan, 4 How. McKinstry, 2 Smedes & Toomer, 14 Smedes & M. 13 Cal. 5G0. 6. Where plaintiff waives right to delay trial until all the defendants were served. See Meagher V. Gagliardo, ;!.5 Cal. (i02. 7. Judgment cannot be had against defendant not served. In an action against defendant sued «s partners it was held that to .sustain a judg- ment against a defendant he must be served with process, or brought into court through some of the forms of law. Ingraham v. Gildemester, 2 (Miss.) 401; Dean v. M. 213; Edwards v. 76; Chester v. Miller, Cal. 89; see also Estell v. Chenery, 3 Cal. 468. And where process was not served on a party iu a suit against several defendants jointly liable, he cannot be made a defendant in a suit upon the judgment against the party served. Tay v. Haw- ley, 39 Cal. 9.i. 8. Actions against defendants severally liable, and action against defendants jointly liable. It was held that "if the action be against defend- ants severally liable, the clerk can, upon ap])Ii- cation of the plaintiff, enter judgment upon default against the parties served, without regard to the other parlies named in the complaint. If the action be against defendants jointly and not severally liable, and only a portion of them are served, the clerk can also, upon like application, enter judgment; but in that case it must be en- tered against all the defendants, and so as to be enforced against the joint property of all. and the separate property of those served." Kelly v. Van Austin, 17 Cal. 566. But see Tay v. Haw- ley, supra. 9. For several judgments against defendants, etc., see §§ 578, 579, post. 10. When one or more may sue or defend for all. See §§ 382, 383, 384, ante. 11. For proceedings against joint debtors, see §§ 989-994. 415. Proof of service, how made. Proof of the service of summons and ■complaint must be as follows: 1. If served by the sheriff, his certificate thereof; 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 post-office, 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. § Proof of service by affidavit. See post, § 2009. Legislation § 415. 1. Enacted March 11, 1872; ^ased on Practice Act, §§ 33, 34 (New York Code, § 138). When enacted in 1872, (1) in *he first paragraph, the words after "service" were changed from "of the summons shall be as follows"; (2) in subd. 2, the clause, "or his ■deputy, the affidavit or certificate of such sheriff -or deputy," was omitted, and "his certificate thereof" inserted; (3) in subd. 3, the word "has" was changed from "shall have" ; in subd. 5 (which was § 34), the word "must" was changed irom "shall," and the word "the" omitted before "service." 2. Amendment by Stats. 1901, p. 131; un- constitutional. See note ante, § 5. Return of service by sheriff. The sher- iff's return is prima facie evidence of ser- vice (People V. Lee, 128 Cal. 330; 60 Pac. &54) ; and a description, iu the return, of the party served as an officer of a cor- poration, is prima facie evidence of the status of that person. Kowe v. Table Mountain Water Co., 10 Cal. 441; Wilson V. Spring Hill Quartz Mining Co., 10 Cal. 445; Golden Gate Consol. Mining Co. v. Superior Court, 65 Cal. 187; 3 Pac. 628; Keener v. Eagle Lake Land etc. Co., 110 •Cal. 627; 43 Pac. 14. A deputy's return must be in the name of the sheriff. .Joyce ■V. Joyce, 5 Cal. 449; Eovpley v. Howard, 23 ■Cal. 401; Eeinhart v. Lugo, 86 Cal. 395; 21 Am. St. Eep. 52; 24 Pac. 1089. A cer- tificate return by a constable is sufficient, ^nly in a justice's court. CardvFell v. Sabichi, 59 Cal. 490; Berentz v. Belmont Oil Mining Co., 148 Cal. 577, 580; 113 Am. St. Rep. 308; 84 Pac. 47. The return may be amended. Pico v. Sunol, 6 Cal. 294; Drake v. Duvenick, 45 Cal. 455; Estsrte of Newman, 75 Cal. 213; 7 Am. St. Rep. 146; 16 Pac. 887; Herman v. Santee, 103 Cal. 519; 42 Am. St. Rep. 145; 37 Pac. 509. The presumption is in favor of the valid- ity of the return (Curtis v. Herrick, 14 Cal. 117; 73 Am. Dec. 632; Brown v. Law- son, 51 Cal. 615), unless it appears on the face thereof that it is insufficient (People V. Bernal, 43 Cal. 385); and the presump- tion of the legality of service will not overcome facts to the contrary in the re- turn (Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742) ; as where, in an action against a domestic corjjoration, the return shows the defendant to be a foreign corporation. Elder v. Grunsky, 127 Cal. (37; 59 Pac. 3oO. The sheriff's return is not traversable; nor will the court permit it to be collaterally attacked, even where he is shown to be guilty of fraud and collusion; the law pre- sumes that every officer will fully perform his duty, and that he has done so in everv instance, until the contrary is shown; a fortiori, it will never bend this principle upon the hypothesis that a sworn officer of the law will commit perjury. Egery v. Buchanan, 5 Cal. 53; Johnson v. Gorham, §415 MANNER OF COMMENCING CIVIL ACTIONS, 31& 6 Cal. 195; 65 Am. Dec. 501. The sheriff's return is suiEcient to show the date of ad- mission of service. Crane v. Brannan, 3 Cal. 192; Alderson V. Bell, 9 Cal. 315; Mont- gomery V. Tutt, 11 Cal. 307. The official capaciV of the officer making the service must be stated in the return. Roveley v. Howard, 23 Cal. 401. The court may allow proof of service to be amended and filed nunc pro tunc as of the date of judgment, if the return is omitted or incorrectly made, but the facts exist which give the court jurisdiction. Herman v. Sautee, 103 Cal. 5i9; 42 Am. St. Eep. 145; 37 Pac. 509; overruling Eeinhart v. Lugo, 86 Cal. 395; 21 Am. St. Eep. 52; 24 Pac. 1089; Howard v. McChesney, 103 Cal. 536; 37 Pac. 523; Woodward v" Brown, 119 Cal. 283; 63 Am. St. Eep. 108; 51 Pac. 2, 542; Bank of Or- land v. Dodson, 127 Cal. 208; 78 Am. St. Eep. 42; 59 Pac. 584. The clerk, in the absence of proof of service, cannot enter default of defendant. Stearns v. Aguirre, 7 Cal. 443; Kellv v. A^an Austin, 17 Cal. 564; Glidden v. Packard, 28 Cal. 649; Will- son V. Cleaveland, 30 Cal. 192; Welsh v. Kirkpatrick, 30 Cal. 202; 89 Am. Dec. 85; Bond v. Pacheco, 30 Cal. 530; Eeinhart v. Lugo, 86 Cal. 395; 21 Am. St. Eep. 52; 24 Pac. 1089. Where the original summons, with proof of service, is lost from the files of the court, the order of the court, upon proof of the loss, that a copy thereof may be filed and used in place of the original, is a determination that such copy is a correct copy of the original, and it is entitled to the same weight as original. Hibernia Sav. & L. Soc. v. Matthai, 116 Cal. 424; 48 Pac. 370. Affidavit of return by other person. The return must show that the person mak- ing service is properly qualified. McMillan V. Reynolds, 11 Cal. 372. A return stating that a copy of the summons was personally served on the defendant is proof that a copy of the summons was delivered to de- fendant personally, and is sufficient to give the court jurisdiction. Drake v. Duve- nick, 45 Cal. 455. The return, where ser- vice was by another than the sheriff, may be amended. Herman v. Santee, 103 Cal. 519; 42 Am. St. Eep. 145; 37 Pac. 509. A return, which states the facts making the affiant a competent witness, is sufficient, without stating that he is competent. Dimick v. Campbell, 31 Cal. 238. There is a presumption that the defendant resides in the county in which he is served with process. Calderwood v. Brooks, 28 Cal. 151; King v. Blood, 41 Cal. 314; Pellier v. Gillespie, 67 Cal. 582; 8 Pac. 185. The affidavit of the person making the service, where it is the only evidence of service, must show the facts required by the stat- ute, and must be sworn to before it can be used as evidence. Hamilton v. Hamil- ton. 20 Cal. App. 117; 128 Pac. 338. The affidavit being the only evidence of ser- vice, the court acquires no jurisdiction un- less it is made as required by law. Ham- ilton V. Hamilton, 20 Cal. 117; 128 Pac. 338. If the summons was duly and regu- larly served, a defendant admitting the- fact in his application to vacate a default judgment, is in no position to object to defects in the affidavit of service. Ham- ilton v. Hamilton, 20 Cal. App. 117; 128 Pac. 338. Return in cases of service by publica- tion. The affidavit and the order, direct- ing the publication of the summons, con- stitute no part of the judgment roll. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. Proof that the order of publication was complied with, and showing a compliance with the law, is a sufficient showing of such service. Sharp v. Daugney, 33 Cal. 505. Where the affidavit of proof of pub- lication shows the time and place of the hearing, that it was made by the "prin- cipal clerk" of the designated newspaper, and that he had charge of all the adver- tisements therein, there is a substantial compliance with the requirements of this section. Pool v. Simmons, 134 Cal. 621; 66 Pac. 872. Where it is clear from the affi- davit that there is but one clerk in the newspaper-office, it is unnecessary that he should describe himself as principal clerk. Gray v. Palmer, 9 Cal. 616. An affidavit showing that the summons was printed weekly, for the required time, in a news- paper published both daily and weekly, is- sufficient. Woodward v. Brown, 119 Cal. 283; 63 Am. St. Eep. 108; 51 Pac. 2, 542. Where the affidavit of the printer states that the summons was published one month, but the judgment states that it was published three months, or that ser- vice has been had upon the defendant, it will be presumed that other proof than that contained in the judgment roll was rendered; to presume to the contrary would be to deny to the record that abso- lute verity which must be accorded to it. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. Where proof is made of service by publication, proof of service by the sheriff is unnecessary. Seaver v. Fitzgerald, 23 Cal. 85. Proof of service by publication is by the affidavit of the printer, or his foreman or principal clerk, setting forth the fact, and where and how long, and an affidavit showing a deposit in the post- office, if such deposit was made. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. It is immaterial by whom the deposit of sum- mons in the post-office is made. Sharp v. Daugney, 33 Cal. 505. Admission of service, An acknowledg- ment of service is sufficient, only when reduced to writing and subscribed by the party; a verbal acknowledgment to the sheriff will not suffice. Montgomery v. Tutt, 11 Cal. 307. When the proof of ser- vice consists of written admissions of the defendants, such admissions, to be avail- able, should be accompanied by some evi- 317 JURISDICTION ACQUIRED WHEN — SERVICE — APPEARANCE. §416 dence of the genuineness of the signatures of the parties; in the absence of such evi- dence, the court cannot notice them (Alderson v. Bell, 9 Cal. 315; Hahn v. Kelly, S4 Cal. 391; 94 Am. Dec. 742); but where the judgment recites that the defendant was regularly served with process, the pre- sumption follows, that there existed every fact essential to the jurisdiction of the person. Shirran v. Dallas, 2i Cal. App. 405; 132 Pac. 88, 454. CODE COMMISSIONERS' NOTE. 1. What is meant by proof of service. Effect of judgment on defective service. Said Sanderson, J., in his elaborate and able opinior. in the case of Hahn v. Kelly, 34 Cal. 403, 94 Am. Dec. 742: "There are two modes" [reprinting to the last paragraph of the opinion on p. 41]. See also, as to juris- diction of defendant by service of summons and in support of the case of Hahn v. Kelly, above cited, the following cases: Sharp v. Brunnings, 35 Cal. 528: Quivey v. Porter, 37 Cal. 458. 2. Judgment cannot be attacked collaterally on defective return. If the return is defective, the defendant must appeal from the judgment. A mere irregularity of service is not sufficient to enable him to attack the judgment collaterally. Dorente v. Sullivan, 7 Cal. 280; see Hahn v. Kelly, 34 Cal. 403; 94 Am. Dec. 742 (note 1, supra) ; Peck v. Strauss, 33 Cal. 678. 3. A sheriff's return is not traversable, and a court will not permit it collaterally to be at- tacked, even if the officer is shown to have been guilty of fraud and collusion. Sewell on Sheriifs, p. 387; Watson on Sheriffs, p. 72; Egery v. Bu- chanan, 5 Cal. 56. 4. Service by sheriff on officers of a corpora- tion. See §411, ante, notes 1, 2, 3. 5. Presumption in favor of return, when place vrhere served is not stated. When the place where the writ was served is not stated in the return, the court should assume that it was served within the jurisdiction of the sheriff" to whom it was di- rected. Crane v. Brannan, 3 Cal. 194; Pico v. Sunol, 6 Cal. 294. 6. Return by deputy to be made in name of principal. If a return is made by a deputy, it must be made in the name of the sheriff. Joyce V. Joyce, 5 Cal. 449; Rowley v. Howard. 23 Cal. 401; see [code commissioners'] note to §410, ante. 7. Affidavit of service by person other than sheriff or deputy. The affidavit of the person serving the summons must show all the facts which are required to make a valid service under the provisions of the four preceding sections. The facts necessary to show a valid service must ap- pear affirmatively. See McMillan v. Reynolds, 11 Cal. 372; Dimick v. Campbell, 31 Cal. 238; see also Peek v. Strauss, 33 Cal. 678. 8. Proof of service by publication. The pub- lication of summons may be proved by the affi- davit of the clerk, of the publisher of the paper, and the fact that the summons was deposited in a pnst-office may also be proved by affidavit; nor is it necessary that the constable (in justice's court) state in his return on the summons that such publication was made and such deposit made in the post-office. Seaver v. Fitzgerald, 23 Cal. 86. 9. Affidavit of publication by printer. An affi- davit in the following terms, "H. F. W., prin- cipal clerk in the office of the Union," etc., "deposes and says that the notice," etc., was held insufficient. By the third subdivision of this sec- tion the faftt that service has been made by pub- lication is to be proved by the "affidavit of the printi-r, his foreman, or principal clerk." These are the only persons competent to testify on the subject. Thai the affiant was one of the three is itself a substantive fact, and must be proved as such before the court in which the action is pending can render judgment against' the par- tic's to whom notice i.s intended to be K'vi^n. In the affidavit above given the affiant swears to nothing except as to matters set forth after the word "deposes." He names himself as prin- cipal clerk, but he does not swear that such was his position in fact. Ex parte Bank of Monroe, 7 Hill, 178; 42 Am. Dec. 61; Cunningham v. Goelet, 4 Den. 71; Staples v. Fairchild, 3 N. Y. 44; Payne v. Young, 8 N. Y. 158; see particu- larly, for correct form, 2 Barb. Ch. Prac. 706; and Hill v. Hoover, 5 Wis. 370; Steinbach v. Leese, 27 Cal. 299. But it was held that if there is but one clerk in a printing-office he need not be described in the affidavit of publication as "principal" clerk. See Gray v. Palmer, 9 Cal. 616. And it was held that an objection that the affidavit was made by a publisher and proprietor, and not by the "printer, foreman, or principal clerk," was fully met by Bunce v. Reed, 16 Barb. 347. It was held in that case that for th;- pur poses of the question, printers and pvrblishers might be considered synonymous, the latter be- ing within the spirit of the statute. Sharp v. Daugney, 33 Cal. 513. And so, also, the affidavit of the "proprietor" of a printing-office was held sufficient. Proprietor and printer are regarded as synonymous terms. Quivey v. Porter, 37 Cul. 464. Where the affidavit of the printer was to the effect that publication had been made one month, but the judgment of the court recites that it was published three months, the recital im- parts absolute verity, and it must be presumed that some additional proof had been made to the court before judgment. Hahn v. Kelly, 34 Cal. 403; 94 Am. Dec.''742. 10. Affidavit of deposit of summons In post- office. It is not a ground for objection to the affidavit that it does not state that the deposit was made in a United States post-office, nor that there was communication by mail between the place of deposit and the place to which the pack- age was addressed. Sharp v. Daugney, 33 Cal. 514. And a copy of summons and complaint must be mailed to a minor under fourteen years of age. A failure to do so cannot be rectified by the appearance of the mother of the child on her own behalf. Gray v. Palmer, 9 Cal. 616. 11. Admission of service by defendant. An admission of service must be in writing, signed by the defendant; an oral admission will not be sufficient. Montgomery v. Tutt, 11 Cal. 307. The place of service need not be stated in the admission. The statute does not require an ad- mission of service to designate the place where the service was made. The object of such desig- nation, when required, is to determine the period within which the answer must be filed, or when default may be taken. Alderson v. Bell, 9 Cal. 321; Crane v. Brannan, 3 Cal. 194. And gen- erally, as to admission of service, see Sharp v. Brunnings, 36 Cal. 533; Crane v. Brannan, 3 Cal. 194. 12. Evidence of genuineness of written admis- sions of defendants. Proof of signatures. It is well settled that courts will take judicial notice of the signatures of their officers, as such, but there is no rule which extends such notice to the signatures of parties to a cause. When, there- fore, ihe proof of service of process consists of the written admissions of defendants, such ad- missions, to be available in the action, should be accompanied with some evidence of the genu- ineness of the signatures of the parties. In the absence of such evidence, the court cannot notice them. Litchfield v. Burwell, 5 How. Pr. 346; Alderson v. Bell, 9 Cal. 321. § 416. When jurisdiction of action acquired. From the time of the ser- vice of the summons and of a copy of the complaint in a civil action, ■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 §416 MANNER OF COMMENCING CIVIL ACTIONS. 318 have acquired jurisdiction of the parties, and to have control of all the sub- sequent proceedings. The voluntary appearance of a defendant is equiva- lent to personal service of the summons and copy of the complaint upon him. Admission of service. Ante, § 415. Appearance. Post, § 1014. Waiver of summons. Ante, § 406. Legislation § 416. 1. Enacted March 11, 1873; based on Practice Act, § 35 (New York Code, § 139), which read: "From the time of the service of the summons and copy of complaint in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him. V»"hen enacted in 1872, (1) the word "is," in both instances, was changed from "shall be, and (2) the last sentence was changed to begin with "The" instead of "A." 3. Amended by Code Amdts. 1873-74, p. 299. Jurisdiction of the parties. A judgment obtained by fraud, or rendered by a court not having jurisdiction, may be treated as an absolute nullity from the start. Car- pentier v. Oakland, 30 Cal. 439. Where the defendant, in an action upon a domes- tic judgment, was not served with sum- mons in the original action, evidence to impeach the judgment for want of service is admissible; but if the parties stipulate that there was no service, and evidence is admitted to that effect, without objection, it is the duty of the court to declare the judgment void, upon the admitted facts. People v. Harrison, 107 Cal. 541; 40 Pac. 956. The court has no jurisdiction to grant relief against defendants, without service upon them of a cross-complaint filed in the action, although they made de- fault. White V. Pattonj^S? Cal. 151; 25 Pac. 270. Want of jurisdiction may be raised at any time. Hastings v. Cunning- ham, 39 Cal. 137; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; Pearson v. Pearson, 46 Cal. 609; People v. Thomas, 101 Cal. 571; 36 Pac. 9. Until fraud or want of jurisdiction is shown in the proper mode, and according to the proper rules of evi- dence, a judgment obtained by fraud, or rendered by a court not having jurisdic- tion, is not void; for it has the form and semblance of a valid judgment, and it may be enforced as such until reversed or set aside by some proceedings. Carpentier v. Oakland, 30 Cal. 439. The power of a court of law to inquire into jurisdiction is limited to an inspection of the record. Carpentier v. Oakland, 30 Cal. 439; Hahn v. Kellv, 34 Cal. 391; 94 Am. Dec. 742; Hobbs V. Duff, 43 Cal. 485; Hodgdon v. Southern Pacific R. R. Co., 75 Cal. 642; 17 Pac. 928; Hill v. City Cab etc. Co., 79 Cal. 188; 21 Pac. 728; Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491; 26 Pac. 1074; Colton Land etc. Co. v. Swartz, 99 Cal. 278; 33 Pac. 878; Estate of Eichhoff, 101 Cal. 600; 36 Pac. 11; Butler v. Soule, 124 Cal. 69; 56 Pac. 601; People v. Perris Irrigation Dist., 132 Cal. 289; 64 Pac. 399, 773. The presentations of a false affi- davit, for the purpose of obtaining an or- der for service of summons by publication, is an act of fraud, and any judgment which rests ujion it must be set aside. Dunlap V. Steere, 92 Cal. 344; 27 Am. St. Rep. 143; 16 L. E. A. 361; 28 Pac. 563. The first point decided by any court, al- though it may not be in terms, is that the court has jurisdiction; otherwise it would not proceed to determine the rights of the parties. Clary v. Hoagland, 6 Cal. 685; Coulter v. Stark, 7 Cal. 244. In suits in personam, in courts other than admi- ralty, no man can be deprived of his prop- erty without first having been personally cited to appear and make his defense, ex- cept by virtue of some positive statutory enactment. Loring v. Illsley, 1 Cal. 24; Parsons v. Davis, 3 Cal. 321; Schloss v. White, 16 Cal. 65; Rowley v. Howard, 23 Cal. 401; Linott v. Rowland, 119 Cal. 452; 51 Pac. 687; Whitwell v. Barbier, 7 Cal. 54; Gray v. Hawes, 8 Cal. 562; Sharp v. Daugney, 33 Cal. 505. The fact of ser- vice is material, and from the time service is made, the court is deemed to have ac- quired jurisdiction; the return of service may be formal or informal, perfect or imperfect, still, if it is in fact made, the court acquires jurisdiction of the person of defendant, and the judgment thereafter rendered cannot be attacked collaterally. Drake v. Duvenick, 45 Cal. 455; Sacra- mento Sav. Bank v. Spencer, 53 Cal. 737; Kevbers v. McComber, 67 Cal. 395; 7 Pac. S3S; Estate of Eichhoff, 101 Cal. 600; 36 Pac. 11; Herman v. Santee, 103 Cal. 519; 42 Am. St. Rep. 145; 37 Pac. 509. Juris- diction is given, in this state, by a form of notice prescribed by statute, which, in such cases, must be substantially pur- sued; and where a general power of serv- ing process is given to an officer, a general return of service is sufficient, but where the power to serve process is exceptional and given only on prescribed conditions there the authority is special, and the par ticular facts must be shown, in order to give effect to the service. McMillan v Reynolds, 11 Cal. 372;' Sharp v. Daugney 33 Cal. 505; Linott v. Rowland, 119 Cal 452; 51 Pac. 687. It is immaterial whether the jurisdiction of the court appears affirm atively upon the judgment roll or not, for if it does not, it will be conclusively pre sumed. Hahn v. Kelly, 34 Cal. 391; 94 Am Dec. 742; Hobbs v. Duff, 43 Cal. 485; But ler v. Soule, 124 Cal. 69; 56 Pac. 601 People V. Perris Irrigation Dist., 132 Cal. 289; 64 Pac. 399, 773. Effect of iiregularities. Presumptions in favor of judgment. Where the order of service by publication fails to direct the summons to be deposited "forthwith" ia 319 JURISDICTION ACQUIRED WHEN — PRESUMPTIONS. §416 the post-office, but the summons was so deposited, the omission of the word "fortli- witli" from the order is a mere irregu- laritj^, which might, perhaps, be good cause to set aside the proceedings on a direct motion for that purpose, but would not afl'ect the judgment. Anderson v. Goff, 72 Cal. 65; 1 Am. St. Eep. 34; 13 Pac. 73. Where service is made by publication of summons against an absent defendant, a personal judgment cannot be entered against him. Anderson v. Goff, 72 Cal. 65 1 Am. St. Rep. 34; 13 Pac. 73; Blumberg V. Birch, 99 Cal. 416; 37 Am. St. Rep. 67 34 Pac. 102; De la Montanya v. De la Men tanva, 112 Cal. 101; 53 Am. St. Rep. 165 32 L. R. A. 82; 44 Pac. 345. The jurisdic- tion of all our courts is special and lim- ited, as defined by the constitution, and they do not proceed according to the course of the common law, but according to the course of the code, which prescribes, in almost every particular, a course very different from that of the common law. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. Where there is no proof in the record, of what was done in obtaining service, it will be presumed that legal service was in fact made; but where the record shows what was done to obtain service, it cannot be presumed that something different was in fact done. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; Latta v. Tutton, 122 Cal. 279; 68 Am. St. Rep. 30; 54 Pac. 844. Unless the record shows to the contrary, it will be presumed, in support of the judg- ment, that a court of general jurisdiction acquired the necessary jurisdiction over the parties; in this respect, the record cannot be impeached, in a collateral pro- ceeding, by proof aliunde. Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; Sharp v. Brunuings, 35 Cal. 528; Reily v. Lancaster, 39 Cal. 354, 356; Eitel v. Foote, 39 Cal. 439; Branson v. Caruthers, 49 Cal. 374; McCauley v. Fulton, 44 Cal. 355. The pre- sumptions of law are in favor of the juris- diction and of the regularity of proceed- ings of superior courts, or courts of gen- eral jurisdiction, but they are not in favor of the jurisdiction and regularity of the proceedings of inferior courts, or courts of limited jurisdiction, and parties who claim any right or benefit under their judg- ments must show their jurisdiction affirm- atively; the only limitation put upon the rule is founded upon a distinction between courts. Barrett v. Carney, 33 Cal. 530; Hahn v. Kelly, 34 Can. 391; 94 Am. Dec. 742; Ryder v. Cohn, 37 Cal. 69; Quivey V. Porter, 37 Cal. 458; Mahoney v. Mid- dleton, 41 Cal. 41; McKinley v. Tuttle, 42 Cal. 570; Drake v. Duvenick, 45 Cal. 455; Wood v. Jordan, 125 Cal. 261; 57 Pac. 997. Upon a collateral attack, recitals, in the judgment, of service upon defend- ant, are conclusive of the question of jurisdiction of his person, where the judg- ment is rendered by a court of superior jurisdiction. McCauley v. Fulton, 44 Cal. 355; Drake v. Duvenick, 45 Cal. 455; An- derson V. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73; Estate of Newman, 75 Cal. 213; 7 Am. St. Rep. 146; 16 Pac. 887. The recitals in a judgment are the court's rec- ord of its own acts, and although, upon a direct appeal, the juris V. Dunham, 10 Cal. App. 690; 103 Pac. 351. A defective statement in a summons does not render judgment by default, after per- sonal service, susceptible to collateral at- tack. Keybers v. McComber, 67 Cal. 395; 7 Pac. 838; Dore v. Doughertv, 72 Cal. 232; 1 Am. St. Rep. 48; 73 Pac. 621; People v. Dodge, 104 Cal. 487; 38 Pac. 203. In §416 MANNER OF COMMENCING CIVIL ACTIONS. 320 case of collateral attack upon a judgment for lack of jurisdiction, all presumptions not contradicted by or inconsistent with the record are in favor of the correctness of the judgment; the main difference be- tween a collateral attack and a direct at- tack is, that, in the former, the record alone can be inspected, and is conclusively presumed to be correct; while on direct attack the true facts may be shown, and thus the judgment itself, on appeal, may be reversed or modified. Lyons v. Eoach, 84 Cal. 27; 23 Pac. 1026; Sichler v. Look, 93 Cal. 600; 29 Pac. 220; Kahn v. Matthai, 115 Cal. 689; 47 Pac. 698. Where the ap- pearance is general, although stated to be special, it must be considered as a general appearance in the case. Thompson v. Al- ford, 128 Cal. 227; 60 Pac. 686. Where the court acquires jurisdiction by service of its process, it does not lose it by neglect to make proof of such service a matter of record; the subsequent amendment of the record, by supplying such proof, will support the judgment. Hibernia Sav. & L. Soc. V. Matthai, 116 Cal. 424; 48 Pac. 370. And if judgment is prematurely entered thereafter, it is only an irregularity: it will not be set aside, unless it appears that the result will be different from that al- readv reached. California Casket Co. v. McGinn, 10 Cal. App. 5; 100 Pac. 1077, 1079. In an action for divorce, the court has no jurisdiction to award alimony, where the defendant was not in the state when the action was begun, nor afterwards made any appearance in the action; the court has jurisdiction, iu such cases, only to decree dissolution of the marriage. De la Montanya v. De la Montauva, 112 Cal. 101; 53 Am. St. Rep. 165; 32 L. R. A. 82; 44 Pac. 345. When jurisdiction of the person is ac- quired. The affidavit for service by pub- lication should show with accuracy the efforts made to serve the defendant with summons, and the reason why such service could not be made. Kahn v. Matthai, 115 Cal. 689; 47 Pac. 698; Rue v. Quinn, 137 Cal. 651; 66 Pac. 216; 70 Pac. 732. The affidavit must show two facts: 1. The ex- ercise of due diligence to find the defend- ant within the state; and 2. The failure to find him, after due diligence. Rue v. Quinn, 137 Cal. 651, 655; 66 Pac. 216; 70 Pac. 732. The fact of service, not the proof thereof, gives the court jurisdiction, and it has authority to receive an amended affidavit of service after judgment, and before the roll is made up. Estate of New- man, 75 Cal. 213; 7 Am. St. Rep. 146; 16 Pac. 887; Sichler v. Look, 93 Cal. 600; 29 Pac. 220; Herman v. Santee, 103 Cal. 519; 42 Am. St. Rep. 145; 37 Pac. 509; Bank of Orland v. Dodson, 127 Cal. 208; 78 Am. St. Rep. 42; 59 Pac. 584. The court does not acquire jurisdiction, by constructive service of summons by publication in a foreclosure suit, to enter or docket a per- sonal judgment against the defendant for any deficiency left unpaid by the proceeds of the sale. Blumberg v. Birch, 99 Cal. 416; 37 Am. St. Rep. 67; 34 Pac. 102; Latta V. Tutton, 122 Cal. 279; 68 Am. St. Rep. 30; 54 Pac. 844. The return need not show anything not required by the statute. Williamson v. Cummings Rock Drill Co., 95 Cal. 652; 30 Pac. 762. Where the affi- davit is insufficient, the clerk has no au- thority to enter default, and the court has no jurisdiction to enter judgment: both default and judgment, so entered, are void. Herman v. Santee, 103 Cal. 519; 42 Am. St. Rep. 145; 37 Pac. 509. The service of the summons and complaint gives the court jurisdiction in personam to try and determine every description of question, whether dilatory or in chief, that can pos- sibly arise in the action, and if the affi- davit showing service fails to show that the affiant was competent at the date of the service, it is but an irregularity, to be disposed of by motion to quash, or by grant of further time to answer, or to be the basis of a motion in arrest, or for a new trial, or of proceedings in error, but it does not show a want of jurisdiction. Peck V. Strauss, 33 Cal. 678; Drake v, Duvenick, 45 Cal. 455; Ex parte Ah Men, 77 Cal. 198; 11 Am. St. Rep. 263; 19 Pac. 380; Meredith v. Santa Clara Mining Ass'n, 60 Cal. 617. Defendants not served are not bound by the judgment, nor are they personally liable for its satisfaction; the statute provides that property in which they are jointly interested with other defendants may be taken in execu- tion to satisfy the judgment. Tay v. Haw- ley, 39 Cal. 93; Stewart v. Spaulding, 72 Cal. 264; 13 Pac. 661. The purpose in effecting service of summons upon a de- fendant in a civil action, whether personal or merely constructive, is to acquire that jurisdiction of his person which is or- dinarily indispensable to enable the court to proceed to judgment; and if such ser- vice, of the one character or the other, is effected pursuant to the provisions of law, in a case where the subject-matter is itself one cognizable by the court before which the defendant is cited to appear, it results, upon general principles, that the court may rightly proceed to determine the case, and that its judgment cannot be questioned for mere lack of jurisdiction to render it. People v. Bernal, 43 Cal. 385. Defendants, by pleading to the merits of the case, waive any objection they may have to defects in the process and its ser- vice. Desmond v. Superior Court, 59 Cal. 274; Sears v. Starbird, 78 Cal. 225; 20 Pac. 547. The presumption of service by de- livery to the defendant personally arises from the affidavit that the affiant "per- sonally served" the defendant. Drake v. Duvenick, 45 Cal. 455. The code requires that the summons shall be embodied iu the judgment roll; but, where absent there- 321 JURISDICTION ACQUIRED WHEN APPEARANCE. §416 from, if it appears that it was in fact issued, that it was sufticient in form, ami that it was duly served, a sullieient prima facie showing is made to give the court jurisdiction of the {>erson of defenlaint. Henke v. Eureka Endowment Ass'n, 100 Cal. 429; 34 Pac. 1089. Where a com- plaint sets forth a number of causes of action, in separate counts, a general de- murrer interposed to the complaint, as a whole, will not be sustained, if any single count states facts sufficient to constitute a cause of action. Krieger v. Feeny, 14 Cal. App. 538; 112 Pac. 901. Though "the aver- ments of a complaint do not involve the statement of an express promise to pay a stipulated sum for merchandise furnished, 3'et they may still be sufficient to entitle the plaintiff to a judgment for whatever the evidence may disclose that the mer- chandise is reasonably worth. Krieger v. Feeny, 14 Cal. App. 538; 112 Pac. 901. In an action by a vendor to recover dam- ages for the breach of a contract for the sale and purchase of real estate, where the vendor agreed to put the vendee in pos- session, allegations, in the complaint, of contemporaneous oral understandings, do not excuse the necessity of an allegation of actual delivery of possession by the vendor. Pierce v. Edwards, 150 Cal. 650; 89 Pac. 600. A complaint in an action upon a note, set forth therein, which shows that it was made payable to the order of a bank, and not to the plaintiff, and which does not allege any indorsement or trans- fer of the note to the plaintiff, does not state a cause of action. Ball v. Lowe, 135 Cal. 678; 68 Pac. 106. Unless there is a contract in writing, signed by the party to be charged, authorizing a real-estate broker to sell or exchange real propertj', the broker cannot recover his commissions. Zeimer v. Antisell, 75 Cal. 509; 17 Pac. 642; McPhail v. Buell, 87 Cal. 115; 25 Pac. 266; Dolan v. O'Toole, 129 Cal. 488; 62 Pac. 92; Jamison v. Hyde, 141 Cal. 109; 74 Pac. 695; Dreyfus v. Richardson, 20 Cal. App. 800; 130 Pac. 161; Navlor v. Ashton, 20 Cal. App. 544; 130 Pac. 181; Holland V. Flash, 20 Cal. App. 686; 130 Pac. 32. A general authority given to brokers, to negotiate a loan upon the de- fendant's property, at a specified rate of interest, which is not successfully nego- tiated, cannot be construed as a general authority to negotiate a sale or exchange of the property. Holland v. Flash, 20 Cal. App. 686; 130 Pac. 32. A complaint against a judicial officer for false im- prisonment must aver, in terms, that the acts constituting the imprisonment were without or in excess of his jurisdiction, or facts from which a vv^ant of jurisdiction ap- pears. Going V. Dinwiddle, 86 Cal. 633; 25 Pac. 129. In an action of forcible entry and unlawful detainer, it is not necessary for the plaintiff specially to plead punitive damages. San Francisco etc. Society v. Leonard, 17 Cal. App. 254; 119 Pac. 405. One who claims that his conduct has been influenced, to his prejudice, by alleged false statements of another, must allege that he believed them to be true, and re- lied on them in his subsequent actions re- 327 SUFFICIENCY OP FACTS. 426 lating to the subject tliereof. Burke v. Maguire, 154 Cal. 450; 'J8 Pac. 21. One who seeks equity must do equity: a com- plaint in equity which •does not offer to do equity, is demurrable. Buena Vista Fruit etc. Co. V. Tuohy, 107 Cal. 243; 40 Pac. 386. An allegation in the comphiint, "that the said defendant executed to this plain- tiff a promissory note," is equivalent to an allegation "that the defendant made his note payable to the plaintiff"; and an averment that the defendant executed to the plaintiff his note in writing includes and imports a delivery of the same to the plaintiff'. Hook v. White, 36 Cal. 299. The common counts for money had and re- ceived may be used to recover money ob- tained by false and fraudulent rei)resenta- tious. Minor v. Baldridge, 123 Cal. 187; 55 Pac. 783; Winkler v. Jerrue, 20 Cal. App. 555; 129 Pac. 804. If money, accord- ing to the allegations of a complaint to recover money paid for a subscription to stock, is paid on account of a subscription for the purchase of stock in one corpora- tion, but is diverted to payment on ac- count of stock in another corporation, and it is shown that certain named defend- ants acted as agents of both corporations in the matter, the complaint states a good cause of action against both the corpora- tion defendant and the agents. Gray v. Ellis, 164 Cal. 481; 129 Pac. 791. The an- jiexing of a contract to complaint, and making it a part thereof, cannot supply the want of the essential averments in the pleading. Hayt v. Bentel, 164 Cal. 680; 130 Pac. 432. A complaint in an action to recover damages for an assault and bat- tery is sufficient, where the assault, the means employed, and the character thereof are fully set forth. Jones v. Lewis, 19 Cal. App. 575; 126 Pac. 853. Where the complaint, in an action for goods sold and delivered, alleges a sale and delivery to defendants other than the corporation de- fendant, and that such corporation assumed the liability of such other defendants, the sale and delivery alleged is material to the alleged liability of the corporation, and the plaintiff is bound by the material al- legations of his complaint. Napa Valley Packing Co. v. San Francisco Relief etc. Funds, 16 Cal. App. 461; 118 Pac. 469. Where the terms of a special contract have been varied or modified by the agreement of the parties, an action for the amount earned should be in the form of indebita- tus assumpsit, and not upon the contract. Naylor v. Adams, 15 Cal. App. 548; 115 Pac. 335. In a complaint for the foreclo- sure of a mechanic's lien, an allegation of the agreed price, both in the claim of lien and in the complaint, is a sufficient prima facie allegation of value, and is sufficient, in the absence of a demurrer for uncer- tainty. Coghlan v. Quartararo, 15 Cal. App. 662; 115 Pac. 664. The rule which permits the pleader to declare upon a con- tract in ha;c verba is, and must be, limited to cases where the instrument set out con- tains the formal contract, showing in ex- press terms the promises and undertaking on both sides. Joseph v. Holt, 37 Cal. 250. A contract in writing may be declared on according to its legal effect, or in hsec verba. Joseph v. Holt, 37 Cal. 250. A complaint for relief against a judgment or decree, on the ground of alleged fraud in its procurement, which does not state nor show any fact constituting a defense to the merits of the original action, and which does not show that the moving party is able to present to the court the evi- dence constituting that defense, does not state a cause of action. Bell v. Thomp- son, 147 Cal. 689; 82 Pac. 327. The com- plaint, in an action to recover upon an assigned claim, should state that the plain- tiff is the owner of the claim. Krieger v. Feeny, 14 Cal. App. 538; 112 Pac. 901. The allegation that a certain condition exists because of a certain fact, neces- sarily carries with it the im])lication that that fact also exists. Bank of Anderson v. Home Ins. Co., 14 Cal. App. 208; 111 Pac. 507. The use of adverbs, such as "will- fully," "unlawfully," "wrongfully," "ille- gally," "groundless," etc., cannot supply omitted facts. Going v. Dinwiddle, 86 Cal. 633; 25 Pac. 129. The use of the terms "wrongfully," "unlawfully," "illegally," and "without authority of law," are mere conclusions of law. Hedges v. Dam, 72 Cal. 520; 14 Pac. 133. The word "due," in a finding, is not the equivalent of "un- paid." Ryan v. Jacques, 103 Cal. 280, 37 Pac. 186. The time of alleged ouster is not material in a complaint in ejectment. Kidder v. Stevens, 60 Cal. 414; Collier v. Corbett, 15 Cal. 183. Where the pleading shows that a cause of action would not arise until the expiration of a certain period, it must appear that such time had elapsed before suit was commenced. Dovle V. Phoenix Ins. Co., 44 Cal. 264. The alle- gation of unnecessary matter may be treated as surplusage. Rogers v. Duhart, 97 Cal. 500; 32 Pac. 570. An allegation of actual fraud is not sustained by proof of mistake; nor can it be said that mistake, as a legal proposition, amounts to construc- tive fraud. Mercier v. Lewis, 39 Cal. 532. An allegation as to the filing of a bond is sufficient, without an averment of its exe- cution and delivery. Sacramento County v. Bird, 31 Cal. 66. Where the complaint alleged that the plaintiff was entitled, by virtue of a prior appropriation, to all the water flowing in a caiion at the head of a ditch, and that the defendant diverted the water to the plaintiff's damage, it is not necessary to state whether the water was supplied at th^ head of the ditch by one or more smaller streams. Priest v. Union Canal Co., 6 Cal. 170. In an action brought on a stockholder's liability, an averment that the corporation became indebted to a cer- §426 COMPLAINT. 328 tain amount is a sufficient allegation of the creation of the indebtedness, as against a general demurrer: and any ambiguity or uncertainty is waived by failure to demur on these grounds. Duke v. Huntington, 130 Cal. 272; 62 Pac. 510; Whitehurst v. Stuart, 129 Cal. 194; 61 Pac. 963. Allega- tions must be accepted as true upon demurrer, so far, only, as they relate to matters of fact, as distinguished from matters of law. Ohm v. San Francisco, 92 Cal. 437; 28 Pac. 580. The complaint of a married woman, in an action to recover damages for an alleged wrongful seizure of her personal property, which fails to state that the property was her separate property, is defective. Thomas v. Des- mond, 63 Cal. 426. A complaint, although insufficient to correct a mistake in a deed, may yet be sufficient as a complaint in an action to quiet title. Smith v. Matthews, 81 Cal. 120; 22 Pac. 409. An allegation that the plaintiff is seised in fee, is of an ultimate fact, and is a sufficient statement of the right of the plaintiff, in an action of ejectment or to quiet title. Heeser v. Miller, 77 Cal. 192; 19 Pac. 375; Pavne v. Treadwell, 16 Cal. 220; Garwood v. Has- tings. 38 Cal. 216; Ferrer v. Home Mut. Ins. Co., 47 Cal. 416; Rough v. Simmons, 65 Cal. 227; 3 Pac. 804; 15 Morrison's Min. Eep. 298. Ultimate facts, only, should be pleaded: neither evidence nor conclusions of law should be set forth. Hubbell V. Hubbell, 7 Cal. App. 661; 95 Pac. 664. Pleadings are to be most strictly construed against the party making them. Campbell v. Jones, 38 Cal. 507. The suffi- ciency of the complaint to support the judgment must be reviewed upon an ap- T)eal from the judgment. Wells Fargo & Co. V. McCarthy, 5 Cal. App. 301; 90 Pac. 203. Evidence and law not to be pleaded. The facts must be distinguished from evidence of the facts; the latter pertains to the trial, and has no place in the pleadings. Green v. Palmer, 15 Cal. 411; 76 Am. Dec. 492. There is no necessity to put the law into the pleading (People v. Com- mon Council, 85 Cal. 369; 24 Pac. 727), nor is it necessary to allege matter of law in the complaint (Board of Supervisors v. Bird, 31 Cal. 66) ; nor need matters im- plied by law be pleaded (Wilhoit v. Cun- ningham, 87 Cal. 453; 25 Pac. 675; Kraner V. Halsey, 82 Cal. 209; 22 Pac. 1137); nor need probative facts be averred in the complaint (Dambmann v. White, 48 Cal. 439), and they will be stricken out as sur- plusage, on motion (Miles v. McDermott, 31 Cal. 270; Gates v. Salmon, 46 Cal. 361); nor should presumptions of law be stated. Henke v. Eureka Endowment Ass'n, 100 Cal. 429; 34 Pac. 1089. Presumptions need not be averred. Pre- sumptions of law need not be averred. Henke v. Eureka Endowment Ass'n, 100 Cal. 429; 34 Pac. 1089; Cuthill v. Peabody, 19 Cal. App. 304; 125 Pac. 926. Where a contract is required to be in writing, the presumption that it was in writing ueces- sarilv follows the allegation of its making. Cuthill v. Peabody, 19 Cal. App. 304; 125 Pac. 926. Fraud is not presumed; and whenever it constitutes an element of a cause of action of an affirmative nature, or is invoked as conferring a right, it must be alleged. Estate of Yoell, 164 Cal. 540; 129 Pac. 999. The plaintiff, in an action on a promissory note, is presumed to be the owner and holder of the note at the com- mencement of the action: no allegation as to ownership is required. Pryce v. Jor- dan, 69 Cal. 569; 11 Pac. 185; Kirk v. Roberts, 3 Cal. Unrep. 671; 31 Pac. 620; Hook V. White, 36 Cal. 299. Whatever is an essential element to a cause of action must be presented by a distinct averment; it cannot be left to an inference to be drawn from the construction of an instru- ment, whether set forth by copy in the body of the complaint, or attached thereto as an exhibit. Hibernia Sav. & L. Soc. v, Thornton, 117 Cal. 481; 49 Pac. 573. Legal conclusions. In legal proceedings, it is the means by which a result is to be reached which must determine whether a given conclusion is one of fact or law; if from the facts in evidence the result can be reached by that process of natural rea- soning adopted in the investigation of truth, it becomes an ultimate fact, to be found as such; if, on the other hand, re- sort must be had to artificial processes of law in order to reach a final determination, the result is a conclusion of law. Levins V. Eovegno, 71 Cal. 273; 12 Pac. 161. An averment or a statement may be of a fact or of a conclusion of law, according to the context. Levins v. Rovegno, 71 Cal. 273; 12 Pac. 161; Turner v. White. 73 Cal. 299; 14 Pac. 794; Lataillade v. Orena, 91 Cal. 565; 25 Am. St. Rep. 219; 27 Pac. 924. A conclusion of law tenders no issue: a com- plaint depending upon such an allegation is insufficient and demurrable. Callahan V. Broderick, 124 Cal. 80; 56 Pac. 782; Branham v. Mayor and Common Council, 24 Cal. 585; Aurrecoechea v. Sinclair, 60 Cal. 532; Johnson v. Kirby, 65 Cal. 482; 4 Pac. 458; Spring Valley Water Works v. San Francisco, 82 Cal. 286; 16 Am. St. Eep. 116; 6 L. R. A. 756; 22 Pac. 910, 1046; Glide V. Dwver, 83 Cal. 477; 23 Pac. 706; Ohm v. San Francisco, 92 Cal. 437; 2S Pac. 580. A conclusion of law is not required to be denied in the answer. People v. Hastings, 29 Cal. 449. A statement of con- clusions of law is not the statement of an issuable fact, and should be avoided. Going V. Dinwiddle, 86 Cal. 633; 25 Pac. 129; Postal Telegraph Cable Co. v. Los Angeles, 164 Cal. 156; 128 Pac. 19. A statement that the parties entered into a parol con- tract of partnership is not the statement of a mere legal conclusion; it presents an issuable fact. Doudell v. Shoo, 20 Cal. 329 STATEMENT — ALLEGATIONS — DEFECTS CURED HOW. §426 App. 424; 129 Pac. 478. An averment that one is the "owner and holder" of an in- strument, is sinijily the averment of a con- elusion of law. Weddersjtoon v. Rogers, 32 Cal. 569; Poorman v. Mills & Co., 35 Cal. 118; 95 Am. Dec. 90; Hook v. White, 36 Cal. 299; Kennedy etc. Lumber Co. v. S. S. Construction Co., 123 Cal. 584; 56 Pac. 457; Curtin v. Kowalsky, 145 Cal. 431; 78 Pae. 962; People's Home Sav. Bank v, Stadtmuller, 150 Cal. 106; 88 Pac. 280. An allegation of joint liability is but a legal conclusion (Ghiradelli v. Bourland, 32 Cal. 585); as is also an allegation, made on in- formation and belief, that no notice was given: it is not an averment of a fact. Stokes V. Geddes, 46 Cal. 17. Where the pleader, in an action to quiet title, sets forth specifically the links in his chain of title, a general allegation of ownership will be treated as a mere conclusion of law from the facts stated. Gruwell v. Sey- bolt, 82 Cal. 7; 22 Pac. 938; Kidwell v, Ketler, 146 Cal. 12; 79 Pac. 514; and see Dye V. Dye, 11 Cal. 163; Levins v. Ro- vegno, 71 Cal. 273; 12 Pac. 161; Turner v. White, 73 Cal. 299; 14 Pac. 794; Heeser v. Miller, 77 Cal. 192; 19 Pae. 375; Savings and Loan Society v. Burnett, 106 Cal. 514; 39 Pac. 922. The words, "there is now due," etc., present but a conclusion of law, and not an averment of a fact; the breach of the contract to pay is of the essence of the cause of action, and must be alleged; a failure to allege which is a defect, going to the statement of the cause of action, which is not waived by a failure to demur. Ryan v. HoUiday, 110 Cal. 335; 42 Pac, 891; Frisch v. Caler, 21 Cal. 71; Roberts v. Treadwell, 50 Cal. 520; Scroufe v. Clay, 71 Cal. 123; 11 Pac. 882; Barney v. Vigo- reaux, 92 Cal. 631; 28 Pac. 678. Where the complaint shows that the defendant threatened to sell the property of the plain- tiff for the non-payment of an illegal tax, but fails to show that the defendant was at that time armed with any authority, real or apparent, to carry out his threat, there is no showing of any legal duress of person or property, sufficient to establish compulsion or coercion. Bank of Santa Rosa V. Chalfant, 52 Cal. 170. In the absence of all explanation, the court is justified in directing the jury to infer a conversion or an ouster from the fact of demand and refusal of a co-tenant to be let into possession. Carpentier v. Men- denhall, 28 Cal. 484; 87 Am. Dec. 135. The right to possession follows as a conclusion of law from seisin, and need not be al- leged. Payne v. Treadwell, 16 Cal. 220; Boles V. Weifenback, 15 Cal. 144; Salmon V. Symonds. 24 Cal. 260; Keller v. De Oeana, 48 Cal. 638; Hihn v. Mangenberg, 89 Cal. 268; 26 Pac. 968; F. A. Hihn Co. v. Fleckner, 106 Cal. 95; 39 Pac. 214; Mc- Caughey v. Schuette, 117 Cal. 223; 59 Am. St. Rep. 176; 46 Pac. 666; 48 Pac. 1088; Fredericks v. Tracy, 98 Cal. 658; 33 Pac. 750. Defective statement of facts. Statements of facts must be concisely made, and, when once made, should not be repeated. Green V. Palmer, 15 Cal. 411; 76 Am. Dec. 492. Only the ultimate facts need be pleaded. Green v. Palmer, 15 Cal. 411: Babcock v. Goodrich, 47 Cal. 488. Pleadings do not subserve the i)urpose intended, where the court is compelled to surmise essential facts. Gates v. Lane, 44 Cal. 392. If facts are stated, although imperfectly, showing the liability of the defendant, the com- plaint must be sustained. Ryan v. Jacques, 103 Cal. 280; 37 Pac. 186; Tehama County V. Bryan, 68 Cal. 57; 8 Pac. 673; Harnish V. Braraer, 71 Cal. 155; 11 Pac. 888; Brown v. Weldon, 71 Cal. 393; 12 Pac. 280; Hughes v. Alsip, 112 Cal. 587; 44 Pac. 1027. Irrelevant and surplus matter, although objectionable, will not vitiate the complaint, if otherwise sufficient. Smith V. Matthews, 81 Cal. 120; 22 Pac. 409. Irregularities or defects in the state- ment of a cause of action may be waived by failing to answer, or by answering to the merits; but a defective cause of ac- tion is not cured by failure to answer or by verdict. Harmon v. Ashmead, 60 Cal. 439; Abbe v. Marr, 14 Cal. 210; Choynski V. Cohen, 39 Cal. 501; 2 Am. Rep. 476. Where one count in the complaint is de- fective, the judgment must be reversed, notwithstanding the other counts may be good, where the verdict is general, and it is not certain upon which count it was founded. Barron v. Frink, 30 Cal. 486. The judgment cannot be sustained, unless the iiroof establishes the cause of action alleged in the complaint, even though a different cause of action is fully proven. Nichols V. Randall, 136 Cal. 426; 69 Pac. 26; Benedict v. Brav, 2 Cal. 251; 56 Am. Dec. 332; Stout v. CoflSn, 28 Cal. 65; Mon- dran v. Goux, 51 Cal. 151; Devoe v. De- voe, 51 Cal. 543; Murdock v. Clarke, 59 Cal. 683; Bryan v. Tormey, 84 Cal. 126; 24 Pac. 319. One good count in the com- plaint, sustained by the findings, will support the judgment, which will not be reversed because of the insufficient state- ment of other causes of action. Terrill v. Terrill, 109 Cal. 413; 42 Pac. 137; Hunt V. San Francisco, 11 Cal. 250; Barron v. Frink, 30 Cal. 486; Bernstein v. Downs, 112 Cal. 197; 44 Pac. 557. A substantial averment of facts, although defective in form, will support the verdict or a de- fault judgment. People v. Rains, 23 Cal. 127. Where each count is sufficient as against a general demurrer, the complaint is sufficient to support the verdict and judgment. Bernstein v. Downs, 112 Cal. 197; 44 Pac. 557. Defective allegations, how cured. Defec- tive allegations are cured by verdict; all in- tendments will be made in support of the judgment thereon. Cutting Fruit Packing Co. V. Canty, 141 Cal. 692; 75 Pac. 564: Hentsch v. Porter, 10 Cal. 555; People v. Rains, 23 Cal. 127; San Francisco v. Pennie, §426 COMPLAINT. 330 93 Cal. 465; 29 Pac. 66; Kimball v. Eichard- son-Kimball Co., Ill Cal. 386; 43 Pac. 1111. Defects in manner, rather than in matter, of averment do not render the complaint so radically insufficient as not to sustain the judgment. Eussell v. Mixer, 42 Cal. 475. Averments lacking in the complaint cannot be supplied by a general reference to recitals of facts in an exhibit annexed to and made a part of the complaint. Mayor and Common Council v. Signoret, 50 Cal. 298. The entire absence of any al- legation whatever is not within the rule that the defective allegation of a fact may be cured by default or verdict. Hentsch V. Porter, 10 Cal. 555; Richards v. Trav- elers Ins. Co., 80 Cal. 505; 22 Pac. 939. A defective complaint is cured by the judg- ment, as to all such averments as may, by fair and reasonable intendment, be found to have been pleaded. Alexander v. Mc- Dow, 108 Cal. 25; 41 Pac. 44. Tender of issue of seisin or ownership at the date of bringing suit in ejectment should be made; but the defendant may tender the issue in his answer, and where this is done, the de- fect in the complaint is cured. Vance V. Anderson, 113 Cal. 532; 45 Pac. 816; Schenck v. Hartford Fire Ins. Co., 71 Cal. 28; 11 Pac. 807; Cohen v. Knox, 90 Cal. 266; 13 L. E. A. 711; 27 Pac. 215; Die- fendorfiE v. Hopkins, 95 Cal. 343; 28 Pac. 265; 30 Pac. 549; San Diego County v. Seifert, 97 Cal. 594; 32 Pac. 644. Breach of duty. An action upon a con- tract must show a breach thereof. Rich- ards V. Travelers Ins. Co., 80 Cal. 505; 22 Pac. 939; Morgan v. Menzies, 60 Cal. 341; Du Brutz V. Jessup, 70 Cal. 75; 11 Pac. 498. If there is not an entire failure to state the fact of a breach of the contract sued upon, or to allege the non-payment of money sought to be recovered, and the averment is simply uncertain and defective, the defect can be reached only by spe- cial demurrer, particularly designating the specific point at which it is aimed. Grant V. Sheerin, 84 Cal. 197; 23 Pac. 1094. Where each count of the complaint alleges that the defendant "has not paid any part of the amount due, as aforesaid," this is not a legal conclusion, but a sufficient aver- ment of non-pavment. Krieger v. Feenv, 14 Cal. App. 538; 112 Pac. 901. A com- plaint to recover a deposit made upon a contract to sell land is sufficient, where the facts stated therein show that the plaintifif has done all that was required of him. Snowden v. Derrick, 14 Cal. App. 309; 111 Pac. 757. A complaint to re- cover damages for the breach of a contract to construct a building, which alleges a failure to do the work, an abandonment thereof in an uncompleted condition, a refusal by the defendant to perform the contract, and the reasonable cost of com- pleting the building, states a sufficient cause of action as against a general de- murrer. Bacigalupi v. Phoenix Bldg. etc. Co., 14 Cal. App. 632; 112 Pac. 892. In an action to enjoin a continuous trespass on a right of v/ay, it is not necessary to allege, in the complaint, that the plaintiff was the owner of the right of way at the time the right to the use thereof was first violated. Miller & Lux v. Kern County Land Co., 154 Cal. 785; 99 Pac. 179. The complaint in an action on a contract to sell a crop, estimated to contain twenty car- loads, more or less, alleging the delivery to the defendant of nine car-loads, and the acceptance thereof and part payment therefor by him, and seeking to recovei the balance due, states a cause of action. Hills V. Edmund Peycke Co., 14 Cal. App. 32; 110 Pac. 1088. Where, in an action to foreclose a mechanic's lien, the building contract provides for the submission of disputes to arbitration, the complaint must show a compliance with such provision; but where it avers the completion of the contract, the acceptance of the building, and states no dispute, there is a waiver, by such acceptance, of the defendant's right to have any dispute settled by arbi- tration. Burke v. Dittus, 8 Cal. App. 175; 96 Pac. 330. An averment in a complaint, that a specified sum "is now due _ and owing," etc., though the statement of a legal conclusion, in which the material fact of non-payment is implied, is sufficient to sustain a judgment by default. Penrose V. Winter, 135 Cal. 289; 67 Pac. 772 (over- ruling Ryan v. Holliday, 110 Cal. 335; 42 Pac. 891); and see Burke v. Dittus, 8 Cal. App. 175; 96 Pac. 330. A complaint for a judgment against the estate of a deceased executrix cannot be held good as a com- plaint in equity to follow a trust fund, and to obtain an order on the administrator of her estate to tiirn over to the plaintiff the share of the trust fund claimed by the plaintiff, when no breach of trust is al- leged in the complaint, made by either the executrix or her administrator. Burke v. Maguire, 154 Cal. 456; 98 Pac. 21. In an action to recover money alleged to be due on a contract, an averment that the de- fendant has "failed, neglected, and re- fused to pay," said money, or any part thereof, is a sufficient allegation of non- pavment, when tested bv general demur- rer. O'Hanlon v. Denvir, 81 Cal. 60; 15 Am. St. Rep. 19; 22 Pac. 407; Eankin v. Sisters of Mercv, 82 Cal. 88; 22 Pac. 1134; Grant v. Sheerin, 84 Cal. 197; 23 Pac. 1094; Gardner v. Donnelly, 86 Cal. 367; 24 Pac. 1072; Irwin v. Insurance Com- pany, 16 Cal. App. 143; 116 Pac. 294. Such an averment was held not sufficient, in Scroufe v. Clay, 71 Cal. 123; 11 Pac. SS2. A complaint which alleges, in effect, that the defendant cut a canal through the natural bank of a river, and, after so doing, failed to take proper precautions to pre- vent the waters of the river from flooding 331 ANTICIPATING DEFENSE PLEADING WRITTEN INSTRUMENT. §426 the plaintiff's land, and also alleges that the waters of the river did in fact flood his land to his injury, sufficiently states a cause of action as afitaiust a general de- murrer. Perkins v. Blauth, 163 Cal. 7S2; 127 Pac. 50. A complaint on a contract to sell and improve a lot states no cause of action, where it docs not allege any con- tract to convey. Hoffman v. Osborn, 15 Cal. App. 125; 113 Pac. 705. Where a con- tract is payable in installments, and suit is brought for a breach of such contract, the complaint should not only allege that the defendant has made default in the pay- ment of one or more of the installments, but also that such default has continued for the prescribed period. Southern Cali- fornia Alusic Co. v. Skinner, 17 Cal. App. 2U5; 119 Pac. lOG. Allegations must be direct. Material allegations must be distinctly stated in pleadings, and are not to be inferrerl from doubtful or obscure language. Campbell V. Jones, 38 Cal. 507. It is not sufficient to state a material fact, in a complaint, by way of recital; it should be directly averred. Denver v. Burton, 28 Cal. 549. A complaint should allege a material fact by way of direct averment, and not by in- ference. Stringer v. Davis, 30 Cal. 318. Consideration. A written contract car- ries with it the presumption of a considera- tion, as a matter of law; and the burden is cast upon the defendant to show the contrarj', to avoid the contract. Cuthill v. Peabody, 19 Cal. App. 304; 125 Pac. 926. It is not necessary to a good complaint that the consideration of a contract should be alleged. Cuthill v. Peabody, 19 Cal. App. 304; 125 Pac. 926. It is not necessary to aver a consideration in a complaint, where it is implied by law (Henke v. Eureka Endowment Ass'n, 100 Cal. 429; 34 Pac. 1089); nor is it necessary to aver either a consideration or a promise, where either is implied as a legal conclusion from the facts alleged. Krieger v. Feeny, 14 Cal. App. 538; 112 Pac. 901. No special aver- ment of a consideration is necessary in support of an instrument in writing im- porting a consideration; the necessity of pleading a consideration is obviated, not by the mode of pleading it, but by the fact that it is in writing. Henke v. Eureka Endowment Ass'n 100 Cal. 429; 34 Pac. 1089; and see McCartv v. Beach, 10 Cal. 461; Wills V. Kempt, 17 Cal. 98; Goddard v. Fulton, 21 Cal. 430. A complaint for the specific performance of a contract for the sale of land must allege the adequacy of the consideration received by the de- fendant. Sunrise Land Co. v. Root, 160 Cal. 95; 116 Pac. 72. Anticipating defenses. It is not neces- sary, in a complaint, to anticipate or nega- tive any defense or counterclaim. Hills v. Edmund Pevcke Co.. 14 Cal. App. 32; 110 Pac. 1088; Kirk v. Roberts. 3 Cal. Unrep. 671; 31 Pac. 620. If relief and discharge is set out in bar of the action, still, under our system of jdeading, which i)ermits no replication, the defense of fraud is open to the plaintiff, without special averment; and it is equally open to him to rebut the effect of a release, by the same evidence, when, though not pleaded by the defend- ant, it is oft'ered and admitted in evidence. Montgomery v. Kauer, 125 Cal. 227; 57 Pac. 894. The anticipation of a defense may render the complaint objectionable for uncertainty. Munson v. Bowcn, 80 Cal. 572; 22 Pac. 253. If there was a mistake in inserting the name of the jiayee of a note sued upon, the facts constituting such mistake must be set forth in the complaint. Ball V. Lowe, 135 Cal. 678; 68 Pac. 106. Where the complaint states a cause of ac- tion, the defendant, if he admits such facts, must, to set up a defense, allege new mat- ter sufficient to defeat the legal operation of the facts stated in the complaint. Mc- Donald V. Davidson, 30 Cal. 173. Allegations on information and belief. Where the allegations of the comjjlaint re- late to facts, the truth of which is par- ticularly within the knowledge of the de- fendant, there can be no valid objection to their being based on information and belief; and § 446 seems to contemplate that the averments of a pleading may be so based; the fact that the records of the de- fendant, a corporation, were open to the inspection of the plaintiff does not affect the rule, for the reason that such records may be contradicted, if they do not speak the truth. McDermont v. Anaheim Union Water Co., 124 Cal. 112; 56 Pac. 779. A complaint alleging that certain services were to be performed for the plaintiff by the defendant, implies an agreement to pay a quantum meruit, and is good, as against a general demurrer, so far as the question of consideration is concerned. Semi-Tropie Spiritualists' Ass'n v. Johnson, 163 Cal. 639; 126 Pac. 488. If a verified complaint alleges facts "on information and belief," such averments do not present anything more than hearsay testimony, incompetent for the proof of a fact. Kullman v. Su- perior Court, 15 Cal. App. 276; 114 Pac. 589. Pleading a written instrument. A con- tract may be declared on according to its legal effect, or in hasc verba; and where the latter is the case, it must be taken and considered as a part of the complaint (Murdock v. Brooks. 38 Cal. 596; Lambert v. Haskell, 80 Cal. 611; 22 Pac. 327; White v. Soto, 82 Cal. 654; 23 Pac. 210); and this course is more consistent with the mode of pleading adopted in this state .Joseph V. Holt, 37 Cal. 250. A copy of a note annexed to the complaint, and re- ferred to therein, forms a part of the com- plaint. Ward V. Clav, 82 Cal. 502; 23 Pac. 50, 227; Whitby v. Rowell, 82 Cal. 6.15; 2.3 Pac. 40. 382; Savings Bank v. Burns, 104 Cal. 473; 38 Pac. 102. Matters of sub- H26 COMPLAINT. 332 stance must be alleged in direct terms, and not by way of recital or reference, much less by exhibits, merely attached to the pleading; whatever is an essential ele- ment to the cause of action must be pre- sented by a distinct averment, and cannot be left to an inference to be drawn from the construction of a document attached to the complaint. Burkett v. Griffith, 90 Cal. 532; 25 Am. St. Eep. 151; 13 L. R. A. 7C7; 27 Pac. 527; Hiberuia Sav. & L. Soc. V. Thornton, 117 Cal. 481; 49 Pac. 573. To plead an instrument by setting it forth in full is a recognized mode of pleading in this state; the instrument must be one on which an action or defense is founded, and must be free from defect or ambi- guity; and if not, the pleader must put some construction upon it by averment; all that is accomplished by setting forth the instrument in full is to allege its ex- istence and character; it does not involve an assertion of the truth of preliminary or collateral matters recited therein. Lam- bert V. Haskell, 80 Cal. 611; 22 Pac. 327. Where a subsequent count refers to a pre- ceding count, which is definite and cer- tain, and prays that it be deemed and taken as a part of the cause of action as though set out at length, such reference is sufficient, and it is unnecessary to repeat at length, in each of the succeeding counts, the facts therein. Treweek v. Howard, 105 Cal. 434; 39 Pac. 20. Records and papers cannot be made a part of the pleading by merely referring to them, and praying that they may be made a part of such pleading, without annexing the originals or copies as exhibits, or incorporating them with it, so as to form a part of the record in the case. People v. De la Guerra, 24 Cal. 73; Mayor and Common Council v. Signoret, 50 Cal. 298; Lambert v. Haskell, 80 Cal. 611; 22 Pac. 327; Ward v. Clay, 82 Cal. 502; 23 Pac. 50, 227; Whitby v. Rowell, 82 Cal. 635; 23 Pac. 40, 382. The rule as to exhibits is the same, whether the instrument is set forth by a copy in the body of the complaint or is attached thereto as an exhibit. Hibernia Sav. & L. Soc. V. Thornton, 117 Cal. 481 : 49 Pac. 573. There is no difference between set- ting forth an exhibit in an instrument, such as an undertaking^ in the body of the yjleading, or in annexing it as an ex- hibit and making it part of the pleading by proper reference; in each case the copy is a part of the pleading. Lambert V. "Haskell, 80 Cal. 611; 22 Pac. 327. Where a note is sued upon, a copy thereof in the complaint need not show the inter- nal-revenue stamp required upon the origi- nal note; in order to defeat recovery on an unstamped note, it must appear not only that it is unstamped, but also that the stamp has been fraudulently omitted, which can be done only by answer. Hal- lock V. Jaudin, 34 Cal. 167. Demand of relief. The theory of the provision that the complaint must contain a demand of the relief which the plaintiff claims, is, that the plaintiff shall not only state the specific facts which constitute his cause of action, but that he shall also state the specific relief to vv'hich he con- siders himself entitled; the policy is, to apprise the opposite party of the precise nature of the demand, in order that he may come prepared to meet it. Nevada County etc. Canal Co", v. Kidd, 37 Cal. 282. Any relief embraced in the issues may be granted. Where the issues are clearly shown in the complaint and answer, the court is authorized to grant any relief embraced therein. Hurlbutt v. Spaulding Sav. Co., 93 Cal. 55; 28 Pac. 795; Blumberg v. Birch, 99 Cal. 416; 37 Am. St. Rep. 67; 34 Pac. 102. The complaint, while setting forth a single cause of action, may, at the same time, ask for different relief from different defendants: the character of the complaint is to be determined from its contents, rather than from a misnomer on the part of the pleader. Security Loan etc. Co. v. Mattern, 131 Cal. 326; 63 Pac. 482. Legal and equitable relief are ad- ministered in the same forum, according to the same general plan; and a party cannot be denied his rights, merely be- cause he is not entitled to relief at law or in equity, as the ease may be; he can be sent out of the court only where, upon his facts, he is entitled to no relief, either at law or in equity. Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423. The amount for which judgment is demanded in the complaint determines the iurisdiction (Rodley v. Curry, 120 Cal. 541; 52 Pac. 999) ; but the prayer of the complaint does not conclude the question of jurisdiction, regardless of the allegations on which it is founded. Lehnhardt v. Jennings, 119 Cal. 192; 48 Pac. 56; 51 Pac. 195;^ Jack- son v. Whartenby, 5 Cal. 94. Where the facts may constitute two or more different causes of action, and may authorize dif- ferent judgments, the prayer becomes sig- nificant, and may determine the nature of the action. Nevada Countv etc. Canal Co. V. Kidd, 37 Cal. 282; People v. Mior, 24 Cal. 61; Arrington v. Liscom, 34 Cal. 365; 94 Am. Dec. 722. A court of equity will not, even under a prayer for general relief, permit a party to go beyond the scope of the case made by the bill; nor will it, ordinarily, permit a bill, framed for one purpose, answer for another and distinct purpose, especially if the defend- ant might be surprised or preiudiced thereby. Johnson v. Polhemus, 99 Cal. 240; 33 Pac. 90S. Where the allegations of the complaint are insufficient to entitle the plaintiff to introduce proofs as to any damages suffered by him, that fact does not impair its sufficiency to establish his right to equitable relief; nor is it any ob- 333 AMENDMENTS — ESTOPPEL — PLEADINGS. §426 jection to the complaint, that a judgment for damages and for preventive relief is sovif,fht in the same action. Bradley v. An^lo-Amcrican Gas etc. Co., 102 t'al. 627; 36 Pac. 1011. The legislature is not pro- hibited from regulating the practice and jtroceedings in suits in equity because the constitution has conferred upon the supe- rior court jurisdiction in such cases; and having such power, it cannot be doubted that it has also the power to regulate the jiractice of granting preventive relief. Wright V. Superior Court, 139 Cal. 469; 73 Pac. 145. Where the complaint sets forth only one cause of action, and the relief sought has reference only to this cause of action, it is no objection to the complaint that the relief sought is not single. Wickersham v. Crittenden, 93 Cal. 17; 28 Pac. 7SS; and see Montgomerv v. Mc- Laury, 143 Cal. 83; 76 Pac. 964. The right to both legal and equitable relief is based upon the same facts. San Diego Water Co. v. San Diego Flume Co., 108 Cal. 549; 29 L. R. A. 839; 41 Pac. 495. In a case of an equitable character, the prayer of the complaint may be dis- regarded, where the facts stated are suffi- cient to support the decision. Wakefield V. Wakefield, 16 Cal. App. 113; 116 Pac. 309. The relief demanded in the com- plaint does not indicate the character of the action; the substance of the action determines its character, and this must generally be ascertained by a reference to the allegations of the complaint, without regard to the nature of the relief pra3'ed for. Bartlev v. Fraser, 16 Cal. App. 560; 117 Pac. 683. Amendments. An amended complaint supersedes the original. Bray v. Lowery, 163 Cal. 256; 124 Pac. 1004. Where lio attempt is made to state a new cause of action in an amended complaint, the amendment, though made after the ex- piration of the period of limitation for the action, relates back to the time of its commencement. Euiz v. Santa Bar- bara Gas etc. Co., 164 Cal. 1,88; 128 Pac. 330. The complaint, whether origi- nal or amended, can properly speak only of things which occurred either before or concurrently with the commencement .of the action. California Farm etc. Co. v. Schiappa-Pietra, 151 Cal. 732; 91 Pac. 593. Where, in order to prevent the bar of the statute, the complaint was filed on the last day, the statute is not pleadable, either by demurrer or answer, merely be- cause the signature to the complaint is omitted; an unsigned complaint is not void. Canadian Bank v. Leale, 14 Cal. App. 307; 111 Pac. 759. In an action of forcible entry and unlawful detainer, it is an abuse of discretion to refuse to al- low the plaintiff to amend his complaint so as to set up special damages, where the application to amend is made before trial, and there is no objection of surprise on the part of defendant. San Francisco etc. Building Society v, Leonard, 17 Cal. App. 254; 119 Pac. 4(15. A cause of action to quiet title is not changed l)y an amend- ment, where the first complaint states the wrongful claim of defendant in general terms, while the second gives the details. Henrv v. Phillips, 163 Cal. 135; Ann. Cas. 1914A, 39; 124 Pac. 837. Where the com- plaint, with proposed amendments, states a cause of action, refusal to allow the amendments is error. Campbell-Kixwan- nanakoa v. Campbell, 152 Cal. 201 ; 93 Pac. 184. A cause of action to recover dam- ages for the breach of a contract, as set forth in an original complaint, in which the plaintiffs are described as "formerly copartners," is not chanf^ed bv nn amend- ment which avers that the plaintiffs con- tinued to be copartners in the subject- matter of the litigation. Ahlers v. Smiley, 163 Cal. 200; 124 Pac. 827. Estoppel must Ije pleaded. Napa Valley Packing Co. v. San Francisco Relief etc. Funds, 16 Cal. App. 461; 118 Pac. 469. What answer must contain. See note post, § 437. Contracts that must be in writing. See Civ. Code, § 1624. Allowance of common counts under code sys- tem. See note 57 Am. Dec. .544. CODE COMMISSIONERS' NOTE. 1. General rules of pleading under the code. The court, in the ease of Grpon v. Pnlmer, 1 .'i Cal. 414, 76 Am. Dec, 492. lay down the following valuable rules to hp observed in pleadins: [We prive the entire manual written by David Dudley Field, from which the court makes only certain extracts. We have also inserted the title of cases and a dijrest of various decisions under the rules, which they are intended to explain. The rules {renerally, however, are as given in Green v. Palmer. — Ed.] First rule. The pleadings must be true. That is to say. the pleader must set forth his case as he believes it. In this respect, pleadings under the code differ much from pleadings at common law; for. though it was sometimes said to be a rule of that law that the truth .should be stated, yet it was equally a rule, that certain fictions should be stated: which was much as if one should say. the pleadings must be true, ex- cept when required to be false. Thus the decla- rations in trover and ejectment were standing falsehoods: while the general issue in ass\nnpsit. the statements under a videlicet, the usual aver- ments of place, time, and amount, and many other allegations, were little better. When a lawyer wrote out a st.itement and put it on the files of a court, that his client was possessed of a ship, had casually lost it. and the defendant had found it, the truth being that his client had never had possession, while the defendant had had the ship in his own hands from the time it was built; it is difficult to conceive of a man of education being reduced to a position more dis- tasteful. Not a single purpose of pleading was subserved by such statement. It did not apprise the defendant of the nature of the plaintiff's claim: it did not inform the court or jury of that which they were to try; and it did not pre- serve a record of the point decided. When to such a statement the defendant pleaded the gen- eral issue, that plea being nearly universal, it might truly be said that in no stage of the pro- ceedings, before or at the trial, or when judg- ment was rendered, did the records of the court contain anything from which one could gather the nature of the controversy. Every word of §42G COMPLAINT. 334 truth in the whole proceeding was oral and un- recorded; everythinK which was written down was deceptive and false. So of an action of eject- ment, under our revised statutes, even after the uncouth barbarisms of fictitious plaintiffs and casual ejectors had been abolished. The plain- tiff was obliRed to allege, falsely in most cases, that on some day after his title accrued he was possessed of the premises in question, and that the defendant afterwards entered into them, and unlawfully withheld them from the plaintiff. The defendant pleaded that he was not guilty of un- lawfully withholding the premises. These plead- ings seem to have been framed on the model of those in trover, and answered as little the true purpose of pleadings. Neither the. parties, nor the court, nor the jury, before the oral develop- ments of the trial, could guess the claim or de- fense: and the record afterwards did not show what had been really decided. The usual aver- ments in assault and battery were that the de- fendant assaulted and beat the plaintiff with sticks, stones, knives, etc., though the defend- ant had but couched the plaintiff with the tip of his finger. If a note made at Singapore or Calcutta were brought to suit in a county in this state, the court was innocently informed that Singapore or Calcutta lay in that county. These were some, and some only, of the untruths which common-law pleading required, recommended, or encouraged. Under this code, however, the rule is universal and inexorable, that nothing what- ever should be alleged which is not believed to be true; and the lawyer who inserts any state- ment, no matter how trivial, which he does not believe, violates that rule, and with it, his duty as an officer of the law. It has been argued, and sometimes adjudged, that the plaintiff may still set forth his case in different counts, as they were called. But consider for a moment what those counts were. They were generally not different causes of action, but different forms of stating the same cause. Now, as there can be but one true statement of one transaction, and as the code requires the pleadings to be true, it should seem to follow that different ways of stating the same claim are no longer permissible. They were never permitted in a bill of equity. If the plaintiff have different causes of action, he may, of course, and should, set them forth; but he should not set forth the same cause of action in different forms; and when he sets forth different causes, they should be called claims or causes of action, and not counts, because the term count conveys a wrong impression and tends to preserve a nomenclature, and, with the nomenclature, rules no longer in existence. Second rule. Facts only must be stated. This means the physical facts cognizable by the senses or capable of being shown to a jury without the aid of legal inferences; the facts, as contradis- tinguished from the law, from argument, from hypothesis, and from the evidence of the facts. A legal inference or conclusion from the facts should not be stated; that is not the province of the pleadings under our system, which is, to de- velop the facts. To apply the law to the facts — that is, to draw thence legal inferences or con- clusions — is the province of the court. See Levin- son V. Schwartz, 22 Cal. 229; Payne v. Treadwell, 5 Cal. 310; Payne v. Treadwell, 16 Cal. 246, over- ruling Godwin v. Stebbins, 2 Cal. 105. The words "wrongful or unlawful," when conclusions of law. See Payne v. Treadwell, 16 Cal. 246. An aver- ment that the plaintiff was the owner or holder of a note is not the averment of an issuable fact, it is but the averment of a conclusion of law. Wedderspoon v. Rogers, 32 Cal. 572; so, also, that a certain amount is due upon a note. Frisch V. Caler, 21 Cal. 71. An averment that a "loca- tion was duly and properly made, according to the provisions of an act," is a legal conclusion, the conditions of the act, and the performance thereof, should be stated. People v. Jackson, 24 Cal. 632. The promise to pay alleged in the com- mon counts in assumpsit were merely conclusions of law. Wilkins v. Stidger. 22 Cal. 235: 83 Am. Dec. 64, Where goods were sold on credit, a gen- eral averment in an answer that the "term of credit has not expired" is a conclusion of law. Levinson v. Schwartz, 22 Cal. 229. An averment "that any rieht that plaintiffs may have ever had to the possession," etc., they forfeited by a non- compliance with the rules, customs, and regula- tions of the miners of the diggings embracing the claims in dispute, prior to the defendant's entry, is a statement of a conclusion of law. Dutch Flat Water Co. v. Mooney, 12 Cal. 534. The averment in the complaint that the ayuntamiento had full power and lawful authority to do the act in ques- tion is but an averment of a conclusion of law, and does not tender an issue of fact. Branham v. Mayor and Common Council, 24 Cal. 602. Argu- ment in a pleading is equally inappropriate, for that is to be made orally before the court, when the facts are developed. Hypothetical statements are improper, for the court is to deal not with hypothetical eases, but with the facts of the case in hand. Snow v. Halstead, 1 Cal. 361. The de- fendant's pretenses are equally improper, as they are not the facts of the plaintiff's case. The facts must be carefully distinguished from the evidence of the facts. The latter pertains to the trial, and has no place in the pleadings. Coryell v. Cain, 16 C.Tl. 567; Willson v. Cleaveland, 30 Cal. 200; Larco v. Casaneuava, 30 Cal. 565; Racouillat v. Rene, 32 Cal. 455; Depuy v. Williams, 26 Cal. 214. But inasmuch as the evidence is but a series of facts, it has sometimes been thought diffi- cult to distinguish between the greater facts which ought to be set forth in a pleading and those other and lesser facts which go to prove the former. There ought, however, to be no embarrassment on the part of any lawyer who has ever framed or who understands special verdicts. These have been long known, and the rule is as old as their existence, that they must contain the facts found and not the evidence to prove them. The essen- tial facts must be stated directly, in unequivocal language, and not left to be inferred. The lan- guage of a pleading is construed most strongly against the pleader. Campbell v. Jones, 38 Cal. 508; Moore v. Besse, 30 Cal. 572; but see also Marshall v. Shaffer, 32 Cal. 191. Facts which are material should be stated in the pleadings by direct averment, and not by inference. Stringer V. Davis, 30 Cal. 318. Allegations simply by way of recitals are insufficient. Stringer v. Davis, 30 Cal. 318; Denver v. Burton, 28 Cal. 549; Shafer V. Bear River etc. Mining Co., 4 Cal. 294; see particularly Halleck v. Mixer, 16 Cal. 577. The next rule, however, gives us a satisfactory test by which to distinguish the facts from the evidence. Third rule. Those facts, and those only, must be stated which constitute the cause of action, the defense, or the reply. Therefore: First. Each party must allege every fact which he is required to prove, and will be precluded from proving any fact not alleged. For example, when a writing is by the statute of frauds made necessary to the validity of a contract, the writing must be averred, that being one ox the facts necessary to consti- tute a cause of action. The plaintiff, on his part, must allege all th&t he will have to prove to main- tain his action; the defendant, on his part, all that he must prove to defeat the plaintiff, after the complaint is admitted or proved. See also Jerome v. Stebbins. 14 Cal. 458; Racouillat v. Rene, 32 Cal. 455. Second. He must allege nothing affirmatively, which he is not required to prove. This is sometimes put in the following form: that is to say, that those facts, and those only, should be stated which the party would be required to prove. But this is inaccurate, as negative allegations are frequently necessary, and they are not to be proved (Payne v. Treadwell, 16 Cal. 243); as, for example, in an action on a promissory note, the plaintiff must allege not only the making of the note, but that it has not been paid. The rule, however, applies to all affirma- tive allegations, and, thus applied, is universal. Xo matter what averments were held to be neces- sary in the former scheme of pleading, nothing of an affirmative character is now necessary beyond what the party must prove. For instance, it is enough to allege that the defendant published a 335 STATEMENT — CONCISENESS — REPETITIONS. §426 libel of the plaintiff, without addiiij,' that he ilid it falsely or maliciously; the falsehood being pre- sumed, and the malice being inferred from the falsehood. It must be recollected, then, in the first place, that every fact essential to the claim or defense should be stated. If this part of the rule be violated, the adverse party may demur. In the second place, that nothing should be stated which is not essential to the claim or defense, or, in other words, that none but issuable facts should be stated. If this part of the rule be violated, the adverse party may move to strike out the un- essential parts. See Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. ()92. What is and what is not es- sential, an uninstructed person might not readily discover, but a lawyer ought not to be in doubt. An unessential, or, what is the same thing, an immaterial allegation, is one which can be stricken out from the pleading without leaving it in- sufficient, and, of course, need not be proved or disproved. See S 463, post. The following ques- tion will determine in every case whether an alle- gation be material. Can it be made the subject of a material issue? In other words, if it be denied, will the failure to prove it decide the cause in whole or in part? If it will not, then the fact alleged is not material; it is not one of those which constitute the cause of action, de- fense, or reply. To illustrate this, let us sup- pose an ultimate fact, upon the establishment of which the claim or defense depends, and that the establishment of this fact depends upon the es- tablishment of three or four prior facts, which, being established, prove this. It is the ultimate fact, and not the prior or probative facts, which should be set forth. Miles v. McDermott, 31 Cal. 272; Grewell v. Walden, 23 Cal. 169; see also Marshall v. Shaffer, 32 Cal. 193. As, for example, an action upon the covenants of a deed; the exe- cution and delivery of the deed are ultimate facts upon which the claim depends. When these come to be proved, it may appear, perhaps, that the deed was delivered first in escrow, till the per- formance of certain conditions by the grantee; that these were afterwards performed, and then the delivery became absolute. These, however, are circumstances which, though they will appear in proof, should not be pleaded. Or, take the case of an action for land, where the question is one of boundary. The point in issue is, whether the defendant is in possession of the plaintiff's land, that being affirmed by the plaintiff and denied by the defendant. It would be out of place for either party to insert in his pleading a correspondence respecting the dividing fence, or the acts of the parties toward a practical loca- tion, because, however important these might be in evidence, they might not determine the cause, since, if the correspondence or the practical loca- tion were disproved, the question of the true boundary, according to the deeds, would still re- main. If, in an action for a libel, the defendant justifies, he must allege the truth of the charge, not the defendant's admissions tending to prove the truth, since the admissions might be dis- proved, and yet the charge be true. So, in an action upon a mortgage, if the defeiise be pay- ment, the fact of payment must be alleged, not the evidence of the plaintiff's admission that it had been paid, since there may have been no ad- mission, but nevertheless a payment. It has been already said that some latitude is allowable in respect to the number of facts to be stated, depending upon the relief sought. In an action to enforce a written agreement, nothing behind the fact of the agreement need be alleged; while in an action to reform an instrument, the circumstances under which it was made may be most properly set forth. It results, then, from what' has been stated, under the present rule: first, that the pleader must insert in his pleading what- ever he is to prove; secondly, that he must insert no affirmative allegation which he is not to prove; and thirdly, that what he does insert must be de- cisive of some part of the cause, one way or the other. In an action of ejectment to obtain a re- covery, the title of the plaintiff is the ultimate fact — the fact in issue. The facts going to sup- port his alle!'cd title are probative facts, which, if disputed bv the defendant, are facts in contro- versy. Marshall v. Shaffer, 32 Cal. 193, and cases cited. Complaint should not state facts anticipating a defense. The only object to be gained by such pleading is to put the adverse party upon his oath without making him a wit- ness, and the effect of allowing this would be to establish a system of discovery in conflict with the spirit of the statute. Canfield v. Tobias, 21 Cal. 3.51. It W3S held to be bad pleading to slate in the complaint a discharge in insolvency, or a new promise. Nothing which constitutes matter of defense should be averred in the complaint. The former is a matter of defense, to be set up by the defendant; and the latter is a matter of replication, either by way of plea or evidence, as the system of pleading may be. Smith v. Rich- mond, 19 Cal. 483. rourth rule. All statements must be concisely made, and when once made, must not be repeated. At common law, as well as in chancery, the plead- ings were the very opposite of concise. If there were lawyers who thought differently, they were swayed by peculiarities of taste or education. The "terseness of the common law" had as little to justify or recommend it as those other abused phrases, "The law is the perfection of reason," and "The wisdom of our ancestors." Even the forms with which we are most familiar, the tradi- tional forms in daily use, appear to have been framed with an irresistible instinct towards the use of several words to express the meaning of one. If the declaration was for money lent, that •was set forth as "money lent and advanced" ; if for money paid, it was for money "paid, laid out, and expended": if for money received, it was, "had and received" ; as if, in each instance, one of these words did not express as much as all of them. There were really no concise pleadings at common law, excepting the fictitious ones. A declaration on the case, or in covenant, or in as- sumpsit on a policy of insurance, or other special agreement, was long, involved, and full of repe- titions. The declarations in trover, ejectment, and replevin were short; but they were false, or dis- closed nothing. Every pleading that set forth the facts, set them forth wrapped in a cloud of words. A statute referred to was "the statute in such case made and provided." The spirit of re- dundancy went, indeed, beyond pleadings, and pervaded all writings which came from the hands of lawyers. Conveyances piled expression upon expression, till the sense was nearly lost sight of. Land was "given, granted, bargained, sold, aliened, remised, released, conveyed, and con- firmed," two or three times over in every deed. Statutes were overloaded, till the head grew weary with their endless involutions. Thus, also, such words as "duly," "wrongfully," and "unlaw- fully," so frequently used in pleadings, might better be omitted. They tender no issue, and serve only to detract from that logical directness and simplicity of statement which ought always to be observed in a pleading. Miles v. McDer- mott, 31 Cal. 272; Halleck v. Mixer, 16 Cal. 574. See, as to surplusage, §§ 4.53 to 465, post. There never was a greater slander upon the code than to say that it permits long pleadings. On the contrary, it enjoins conciseness every- where; and if in any pleading that was ever writ- ten under its rule there be an unnecessary word, it was put there in disregard of its provisions. Nor is it possible to frame or conceive of a sys- tem proceeding upon the idea of disclosing the facts of the case, which could require greater con- ciseness than is here required. If pleadings are not to set forth the real claim and defense, they are useless, and had better be dispensed with. A summons to appear before the court and jury on a particular day, to try the rights of the parties on a particular subject, would be just as useful. But if a pleading is to be a statement of the claim or defense, can the wit of man contrive to make it briefer than a concise statement of the facts? If an immaterial statement be inserted, or even an unnecessary word, the courts have the power to strike it out. To avoid repetition, as §426 COMPLAINT. 336 well as to obtain conciseness, logical order is necessary. There are persons who are incapable of making a logical statement of anything, and such persons will be bad pleaders under the code. But a man of education, as every lawyer is sup- posed to be, ought to have no difficulty in setting forth any occurience in its logical, which is its natural, order. And if he does this, and sets forth only the facts on which his case hinges, and uses no more words than are necessary, we shall have brevity and substance, and hear no more of long pleadings, unnecessary recitals, or immate- rial averments. The foregoing are general rules, applicable alike to the complaint and answer. How successfully and rapidly they will develop the issues if they be strictly applied, is easily to be seen, since every allegation must be essential to some part of the claim or defense, and the denial of any one must be so far decisive of the case. At common law each plea was to be an an- swer to the whole declaration; and as there might be as many pleas as one wished, every material allegation might be successively denied. All this may be done under the code in less time, with greater certainty, and in fewer words. The plead- ings will be considered in the order in which they naturally occur, omitting, however, any observa- tions respecting the demurrer. There is nothing in the frame of that which requires particular notice, further than to observe that it does not perform an office so extensive as it performed in common-law pleadings. There are many objec- tions formerly brought before the court upon de- murrer, which are now brought before it upon a simple motion. The complaint. This is to contain: 1. The title. Specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action [i. 6., all the parties, plaintiff and defendant], ■ Court, County of , A, B, & C, D, agt. E, F, G, H, & J, K. 2. The statement. A plain and concise state- ment of the facts constituting a cause of action, without unnecessary repetition. A B, plaintiff, complains [or alleges], First Second Third And so on; or if there be more than one cause of action, which may be united under § 427, post, thus: A B, plaintiff, complains [or alleges]. For a first cause of action: First Second Third For a second cause of action: First Second Third And 50 on. There is an advantage in numbering fhe alle- gations, as it tends to produce clearness of state- ment, logical order, and conciseness, and separates the allegations, leading to singleness of issues. 3. The demand. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof must be stated. Wherefore the plaintiff demands judgment that he recover of the defendant the sum of $ , with interest from the day of , or judgment that the defendant execute and deliver to the plaintiff a conveyance of, etc., and be also en- joined from, etc. Some attorneys add: "And that the plaintiff may have such other relief as the case requires," copying the prayer for relief formerly used in chancery; bat this is useless, since the court must give such relief as the case requires, whether de- manded or not. See § 580. It is, besides, unau- thorized. See Rollins v. Forbes, 10 Cal. 299; Truebody v. Jacobson, 2 Cal. 269; People v'. Turner, 1 Cal. 152. Demand for treble damage* must be expressly inserted. See Chipman t. Emeric, 5 Cal. 239. 2. Object of code to narrow the evidence on trial. It was the intention of the code to require the pleadings to be so framed as not only to ap- prise the parties of the facts to be proved by them respectively, but to narrow the proofs on the trial. Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692. 3. Complaint must contain name of court and county where action is brought. So far as con- cerns the place of trial of civil actions, see §§ 392 to 400, inclusive. 4. Complaint must contain names of the par- ties to the action. As to who are the proper par- ties in an action, see §§ 308, and 367 to 389, inclusive. 5. Averment in complaint which must be made to authorize arrest of defendant. Porter v. Her- man, 8 Cal. 623; Ex parte Cohen, 6 Cal. 318; Davis V. Robinson, 10 Cal. 411. 6. Pleading in actions to recover the posses- sion of real property. It is u.sual to speak of the action to recover the possession of real prop- erty as an action of ejectment, and it is possible that with the technical designation it is sometimes thought that some of the technical allegations peculiar to the old form of the action are still necessary; but such is not the case. There is but one form of civil actions in this state, and all the forms of pleadings and the rules by which their sufficiency is to be determined are prescribed by the code. Tlie complaint must contain "a state- ment of the facts constituting the cause of action, in ordinary and concise language," and it may be verified by the oath of the party, in which case the answer must also be verified. The system in this state requires the facts to be alleged as they exist, and repudiates all fictions; and only such facts need be alleged as are required to be proved, except to negative a possible performance of the obligation which is the basis of the action, or to negative an inference from an act which is iu itself indifferent. Now, what facts must be proved to recover in ejectment? These only: that the plaintiff is seised of the premises, or of some es- tate therein in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action. The seisin is the fact to be alleged. It is a pleadable and issuable fact, to be established by conveyances from a para- mount source of title, or by evidence of prior possession. It is the ultimate fact upon which the claim to recover depends, and it is facts of this character which must be alleged, and not the prior or probative facts which go to establish them. It is the ultimate facts — which could not be struck out of a pleading without leaving it insufficient — and not the evidence of those facts, which must be stated. It is sufficient, therefore, in a com- plaint in ejectment, for the plaintiff to aver in respect to his title, that he is seised of the prem- ises, or of some estate therein iu fee, or for life, or for years, according to the fact. The right to- the possession follows as a conclusion of law from the seisin, and need not be alleged. The posses- sion of the defendant is of course a pleadable and issuable f;',ct, and the only question of difficulty arises from the supposed necessity of negativing its possible rightful character. That' negative allegations, which are not required to be proved, may in some actions be necessary, may be ad- mitted: but is there any such necessity as to the- possession of the defendant in an action of eject- ment ? It seems to us that the substance of a complaint in ejectment under our practice is this: "A owns certain real property, or some interest in it; the defendant has obtained possession of it, and withholds the possession from him." If the defendant's holding rests upon any existing right, he should be compelled to show it affirmatively in defense. The right of possession accompanies the ownership, and from the allegation of the fact of ownership — which is the allegation of seisin in "ordinary language" — the right of present posses- sion is presumed as a matter of law. We do not think, therefore, any allegation beyond that of possession by the defendant is necessary, except 337 PLEADINGS — ACTIONS TO RECOVER REAL PROPERTY. §426 that he withholds the possession from the plain- tiff. The allegation that the possession is "wrong- ful or unlawful" is not the statement of a fact, but of a conclusion of law. The words are mere surplusage, and, though they do not vitiate, they do no good. The withholding of the possession from one who is seised of the premises is pre- sumptively adverse to his right, and wrongful. It is by force of this presumption that the plain- tiff can rest, in the first instance, his case at the trial upon proof of his seisin, and of the posses- sion by the defendant. From these facts, when established, the law implies a right to the pres- ent possession in the phiintiir, and a holding ad- verse to that right in the defendant. Where the plaintiff has been in possession of the premises for which he sues, it will be suffi- cient for him to allege in his complaint such pos- session, and the entry, ouster, and continued withholding by the defendant. Such allegations are proper when they correspond with the facts, but they are not essential, as is thought by many members of the bar. In this state, the posses- sion does not always accompany the legal title. I'he statute authorizes a sale and conveyance of land held adversely by third persons; and the legal title is frequently held by parties who never had the possession. In the courts of New York • — and it is well known that the Practice Code was taken principally from the Code of Procedure of that state — there was at one time some con- flict of opinion as to what were sufficient allega- tions in a complaint in ejectment under the code. It is now, however, settled by the supreme court of that state substantially in accordance with the views we have expressed. In Ensign v. Sherman, 14 How. Pr. 439, the plaintiff averred in her com- plaint that she had lawful title, as the owner in fee-simple, to the real estate in controversy, which was desciibed; that the defendant was in posses- sion of it, and unlawfully withheld possession thereof from her; and, on demurrer, the complaint was held sufficient. Walter y. Lockwood, 23 Barb. 22S, is to the same effect. In Sanders v. Leavy, 16 How. Pr. 308, the complaint was similar to the complaint in the cases cited, and was demurred to on the ground that it did not state facts suffi- cient to constitute a cause of action; because, first, it did not allege that the plaintiff or his grantor was ever in possession ; and second, it did not allege that such possession was disturbed and they were evicted by the defendant, his grantors, or predecessors. And it was contended on the argu- ment, as in the case at bar, that the allegations as to the plaintiff's title and the defendant's pos- session were not averments of facts, but of con- clusions of law ; but the court held the complaint sufficient, and gave judgment against the de- murrer. "To recover real estate," said Mr. Jus- tice Ingraham, in delivering the opinion, "what is it necessary for the plaintiff to prove ? Two things: first, that he is the owner of the prop- erty; secondly, that the defendant withholds from him the possession without right. Both facts are plainly averred in the complaint." The designa- tion of the withholding of the possession by the defendant, in the cases cited, as unlawful, is not considered as constituting any valid ground of ob- jection. In Sanders v. Leavy, the attention of the court was specially directed, in the argument of counsel, to this mode of characterizing the act. For the reasons we have already stated, we con- sider it unnecessary to give it any character by special designation; for, being against one who is seised of the premises, it is presumptively ad- verse and wrongful. To allege that it is unlaw- ful, is merely to state that which follows under the circumstances, as a conclusion of law from the act itself. The decisions of this court in respect to the necessary allegations of a complaint in ejectment have not been uniform, and perh;ji)s on no one subject of pleading is there so much embarrass- ment felt by the profession in coti.se(|uence. In Gladwin v. Stebbins (reported as Godwin v. Steb- bins, in 2 Cal. 105), the complaint averred that the plaintiffs were "lawfully entitled to the pos- session of the premises," and the court held that 1 Fair. — 22 the allegaticjn was of a material fact, and there- fore sufficient. In this respect we think the opin- ion cannot be sustained. The averment is clearly a mere statement of a conclusion of law. In Payne v. Treadwell, 5 Cal. 310, the complaint alleged that the plaintiffs had "lawful title as owners in fee-simple of the premises," and "that the defendant is in possession and unlawfully witliholds the same"; and on demurrer the court held the complaint insufficient. "Xotwilhsland- ing," said Chief Justice Murray, in delivering the opinion, "our statute has dispensed with the old form of pleading, and it is no longer necessary to allege a fictitious demise, etc., still I apprehend that facts sufficient must be pleaded to show the plaintiff's right to recover, and it will not do to state conclusions of law in place thereof. The allegation that the defendant is in possession, and unlawfully withholds the premises, is insufficient; it is a conclusion of law drawn from the char- acter of defendant's possession, the circumstances of which should be stated." The decision, as is apparent, does not relate to the allegation as to the plaintiff's title, notwithstanding the general observations of the chief justice; it applies only to the allegation as to the withholding of the pos- session by the defendant. So far as this was alleged to have been unlawful, the allegation was of a conclusion of law. But the giving of a cer- tain character to the withholding, as unlawful, did not change the material fact that the possession was withheld; and this, as we have seen, taken in connection with the previous allegations of title in the plaintiff, and possession by the defendant, was sulticient. A more particular statement of "the circumstances" of the defendant's possession or withholding is not necessary, under our system of practice. The decision, in this respect, has tended to produce inconvenience to practitioners, and prolixity in pleading, and we have no hesita- tion in overruling it. In Gregory v. Haynes, 13 Cal. 591, it was held that the findings by the court below — that' one of the defendants, and not the plaintiff, was the owner, and entitled to the possession of the prop- erty in controversy, and that the defendants did not unlawfully detain the same from the plaintiff —would not support the judgment, and the de- cision was based upon the ground that the owner- ship and right of possession were not facts, in the legal sense of that term, but conclusions of law. We have had great doubt of the correctness of this decision, ever since it was rendered; and upon the examination which we have given to the subject, in considering the case at bar, we are satisfied that we erred, and are glad we have an opportunity, at so early a day, of correcting our error. The fact was found that one of the de- fendants was the owner of the premises in con- troversy, and that fact alone was sufficient to support the judgment against the plaintiff, nothing else having been found to qualify the right to the possession which accompanies the title. The bal- ance of the findings might have been treated as surplusage. The claim of the plaintiff having been thus disposed of, it was unnecessary to find as to the character of the defendants' detention of the premises. In Boles v. Weifenback, 15 Cal. 144, and Boles v. Cohen, 15 Cal. 150, the opinion states that substantial averments of the com- plaint were only that the plaintiffs were the own- ers of the property in question, and that the defendant was in possession of it. It does not state that there was any averment that the pos- session was withheld from the plaintiffs. If such averment were in fact made in the complaint, the decision cannot be sustained. Payne v. Treadwell, 16 Cal. 243; see also Payne v. 'freadwell, 5 Cal! 310. When a complaint will be treated as a declaration in ejectment. See Ramirez v. Murray, 4 Cal. 293. It is better to simplify the pleadings by allowing these general averments in actions of ejectment than to introduce the unnecessary con- fusion which long and complex statements of the facts must necessarily produce. A holding over by the plaintiff is, in effect, an ouster, and may be so charged. If in every case all the facts connected with the title and the wrongful acts of §426 COMPLAINT. 338 the defendant be inserted in the complaint, the pleadings would be swollen to immoderate dimen- sions, without benefit to the parties. Garrison v. Sampson, 15 Cal. 95. Residence of parties not to be alleged. Doll v. Feller, 16 Cal. 432. Averment of title in general terms or specific deraignment of title — facts to be set out in latter case. Castro v Richardson, 18 Cal. 478. Title or possession to be stated. Id. ; Steinback v. Fitzpatrick, 12 Cal. 295; Salmon v. Symonds, 24 Cal. 266; Marshall v. Shafter, 32 Cal. 176; Yount V. Howell, 14 Cal. 465. Ouster. An allegation of wrongful withhold- ing of possession has the same effect as an alle- gation of ouster. Marshall v. Shafter, 32 Cal. 176. Ouster. Wrongful withholding of posses- sion must be stated. Id. Exact time of ouster need not be alleged. Collier v. Corbett, 15 Cal. 183. When ouster is alleged to have taken place before title accrued to party ousted, it is a fatal defect. See Coryell v. Cain, 16 Cal. 567. When prior possession is claimed, actual ouster must be alleged. Watson v. Zimmerman, 6 Cal. 46; see also Boles v. Cohen, 15 Cal. 150. In the case of Coryell v. Cain, it was held, that, under the facts in that case, the complaint should only have al- leged, that on some day designated, the plaintiffs were possessed of the land, describing it; that wliile thus possessed the defendant entered upon the same and ousted them, and has ever since withheld the possession from them, to their dam- age — specifying such sum as might cover the value of the use and occupation from the date of the ouster. Coryell v. Cain, 16 Cal. 571. The mesne conveyances, through which title is de- rived, are matters of evidence, and should not be stated at length in the complaint. Id. A con- tinued adverse holding must be alleged in com- plaint. Steinback v. Fitzpatrick, 12 Cal. 295. Unnecessary description and evidence of facts should be stricken from complaint. Willson V. Cleaveland, 30 Cal. 192. In our practice, to entitle the plaintiff in ejectment to recover, it is only necessary to establish his right of posses- sion and the occupation of the defendant at that time. The date at which plaintiff's right accrued or the defendant's occupation commenced, is ma- terial only with reference to the claim for mesne profits. See Yount v. Howell, 14 Cal. 465; Stark v. Barrett, 15 Cal. 365. If action is for two separate pieces of land, the complaint must set out each of the two candies of action separately, and each cause of action must affect all the par- ties to the action, and not require trials to be held in different places. Boles v. Cohen, 15 Cal. 150. The complaint may ask, in addition to a recovery of the property, an injunction, restrain- ing the commission of trespass in the nature of waste, pending the action. The grounds of equity interposition should be stated subsequently to and distinct from those upon which the judg- ment at law is claimed. Natoma etc. Mining Co. T. Clarkin, 14 Cal. 544. A complaint that al- leges he is in. possession in one place, and in another avers that he is not, shows no cause of action. Dickinson v. Maguire, 9 Cal. 46. A com- plaint in ejectment, alleging title in plaintiff under a sheriff's sale, made by one sheriff, and a deed e.xecuted by his successor, was held suffi- cient. Alderson v. Bell, 9 Cal. 315. The allega- tion of the value of the use and occupation, rents, and profits of the premises, for the period which the defendants were in the wrongful possession and excluded the plaintiff, is sufficient to charge defendants, without any averment that they re- ceived such rents and profiis. The terms "rents and profits" are not here used in a technical sense. The whole averment is, in effpct, only that the value of the use of the prpmis(>s. while plaintiffs were wrongfully excluded, was the amount stated. Patterson v. Ely. 19 Cal. 40. As to actions of ejectment for mineral lands, as to what are ne- •cessary averments and sufficient pleadings, see Smith V. Doe, 15 Cal. 100. The complaint in an action for the recovery of the possession of real property is not required to be in any particular form: it must be controlled by the facts of the case which are sought to be put in issue. See the matter discussed in Caperton v. Schmidt, 26 Cal. 490; 85 Am. Dec. 187. 7. Actions of ejectment. What must be averred. The law in respect to actions of eject- ment has been materially modified by § 379, ante; see cases there cited, and compare for sufficiency of pleadings. There is no room for doubt that whenever a landlord is entitled to bring an ac- tion under that act against a tenant at sufferance, after having given the requisite notice to quit, etc., he may, instead of proceeding under that act', maintain an action of ejectment. In such action it is not requisite that the complaint should state the tenancy, its termination, the notice, etc.; and when it appears from the pleadings that such tenancy existed, it will be presumed, in sup- port of the judgment in favor of the landlord, that it was proven on the trial that he had taken the necessary steps to terminate the tenancy be- fore the commencement of the action, and was then entitled to recover, unless the contrary is shown by a statement or a bill of exceptions. McCarthy v. Yale, 39 Cal. 585. Complaint in ejectment. Although it is thought by many that a style of pleading in the action of ejectment which would show the right or title under which the plaintiff claims the possession, and the true position of the defendant, both in respect to the title and the possession, would be far preferable to the present system, and would enable the judgment roll to exhibit the issues which were tried and determined with more dis- tinctness and certainty, yet the present system has become so completely established that a change, if any is desirable, ought to come from the legislature. The complaint in this case al- leges Ihe damages sustained by the entry and withholding of the possession by the defendant, and the value of the mesne profits; and we enter- tain no doubt that they are sufticient to support the judgment. The judgment does not specify whether the sum of three hundred dollars was awarded for the damages or mesne profits, or for both; but the presumption is, that the judgment was sustained by the evidence; and whether that sum was awarded for one or both of those de- mands, the jud?ment is a bar to a further re- covery for the same cause. McCarthy v. Yale, 39 Cal. 585; Id., July term, 1872. 8. Action to quiet title to land. It has been held that complaint must aver that plaintiff was in possession. See Pralus v. Jefferson Gold etc. Mining Co., 34 Cal. 558 ; Brooks v. Calderwood, 34 Cal. 5G3. But not necessarily so, under this code. See § 738, post, and notes. 9. Where corporations are plaintiffs. It must be alleged that the party plaintiff is a corpora- tion incorporated under the laws of this state, etc. See California Steam Nav. Co. v. Wright, 6 Cal. 258; 65 Am. Dec. 511; Cumberland College v. Ish, 22 Cal. 641; see, however, Shoe & Leather Bank v. Brown, 9 Abb. Pr. 218; see also Con- necticut Bank v. Smith, 9 Abb. Pr. 168; see this case, also, as to foreign corporation requir- ing same allegation. It is unnecessary to specify the date and title of the acts amending the act incorporating the corporation. It is sufficient to designate the original act of incorporation, and refer generally to the other acts amendatory thereof. Sun Mutual Ins. Co. v. Dwight, 1 Hilt. 51. In a suit brought by a corporation or its assignee, upon an agreement with the corpora- tion, no specific allegation of the incorporation of the company is necessary. A statement of the name of the corporation and of the making of the agreement between the defendant and the com- pany, and of what the company did in fulfill- ment of the agreement, includes the idea of the legal existence of the company; and the fact of incorporation is mere evidence in support of it, not essential to be particularly stated in the pleading. Norris v. Stops, Hob. 211; Henriques v. Dutch West India Co., 2 Ld. Raym. 1536; Bank of United States v. Hask'ins. 1 Johns. Cas. 132; Bennington Iron Co. v. Rutherford. IS N. J. L. 105; 35 Am. Dec. 528; 18 N. J. L. 158; Harris v. Muskingum Mfg. Co., 4 Blackf. (Ind.) 267; 29 Am. Dec. 372; Richardson v. St. Joseph S39 CORPORATIONS — DIVORCE, ETC. — FRAUD, ETC. — LIENS. §426 Iron Co., 5 Blackf. 140; 33 Am. Dec. 4(50; Dutchess Cotton Alnnufactory v. IJiivis, 14 John.s. 239; 7 Am. Dec. 45!); Bank of Utica v. Smalley, 2 Cow. 770, 778; 14 Am. Dec. S'JG; MicluKan Bank v. Williams, 5 Wend. 478, 482; Kennedy -V. Cotton, 2S liarb. 59. 10. Pleadings in actious against corporations. See precediuf; note; also Californi.i Stoam Nav. Co. V. Wright, (> Cal. 258; G'> Am. Dec. 511; Lincoln v. Colnsa County, 28 Cal. t)G2 ; and see iioti' to § 354, Civ. Code, subd. 2. 11. Suits against corporations, municipal and others. In an action against a mujiicipal corpo- r.ation, the complaint set out the bond sued on; avers the defendant to be a corporation; that the corporiition made and delivered the bond on good consideration, and this was done under an ordi- nance passed by the proper agents of the corpo- ration, having authority for that purpose; and that the defendant has failed to pay. This is enough, prima facie, to show a liability on the part of the corporation. We see no more neces- sity for a plaintiff suing a corporation on a note or bond, to set out the ordinance which em- powered the corporate authorities to make the con- tract, than for a plaintiff, suing a principal on a note executed by attorney, to set out in the com- plaint the power of attorney. Nor is it necessary to set out the vote or other proceedings of the cor- porate agents, nor to give any further descrip- tion of the agents than that given in the com- plaint. The bonds themselves are set out or minutely described, and these show by whom they were executed; and the persons signing them are averred to be the agents of the corpo- ration, duly empowered for that purpose. Under- bill V. Trustees of City of Sonora, 17 Cal. 176. Tlie complaint was held to not state facts suffi- cient to constitute a cause of action. Where the allegation is, that the plaintiff, as a justice of the peace, performed services, at the request of the district attorney for that county, in cases Wherein the people of the state were plaintiffs, to the amount of three thousand two hundred dollars, "and that the defendant thereby became and is liable to pay the said sum," there is no allegation of the means by which the county became liable. It is not alleged that the ser- vices were rendered for or were procured by the county, or that the county received any benefit from their performance; nor is it stated that judgments were rendered in those cases, nor that the defendants in those actions have not paid, or were unable to pay, for the services. Miner V. Solano County, 26 Cal. 116. 12. Actions by and against counties. Counties are quasi-corporations, and have power to sue and be sued. See Pol. Code, §§ 4003, 4075. The right to sue a county is not limited to cases of tort, malfeasance, etc., but is given in every case of account. See, for decisions on former law. Price v. Sacramento County, 6 Cal. 2 54; McCann V. Sierra County, 7 Cal. 123. Under the law prior to adoption of code, the claim must first have been presented to supervisors and rejected; and it is probable that such continues to be the law under the code. See the sections of Political Code above cited, and also the cases cited in this note. 13. Actions by and between husband and wife. Action for division of community property after decree of divorce averments in complaint. Sue Johnson v. Johnson, 11 Cal. 200; 70 Am. Dec. 774; Dye v. Dye, 11 Cal. 163. Action by wife to recover homestead granted away by husband alone. Harper v. Forbes, 15 Cal. 202. Suit for distributive share of estate of alleged deceased husband, averment of existence of marriage. Letters v. Cady, 10 Cal. 533; People v. Ander- son, 26 Cal. 129. No allegation of separate property is required in complaint in an action against the wife for her separate debt, for which she was liable in personam before coverture. Bostie V. Love, 16 Cal. 69. Allegation as to married woman being a sole trader. Aiken v. Davis, 17 f'al. 119. 14. Complaint for relief generally on the ground of fraud. Facts constituting the fraud to be set out. Kent v. Snvder, 30 Cal. 066; Porter v. Hermann, 8 Cal. 62.3. The fraud is the sub- stantial cause for action, not the discovery thereof; and if the fraud occurred, before com- mencing action, more than the stated time within which actions may be brought, the cause of ac- tion is barred by the statute of limitations. Carpentier v. Oakland, 30 Cal. 444; Sublette v. Tinney, 9 Cal. 423; see, however, Boyd v. Blankman, 29 Cul. 20; 87 .\m. Dec. 140. 15. Action to vacate judgment on ground of fraud, etc. See Bibend v. Kreutz, 20 Cal. 109; Snow v. Halstead, 1 Cal. 359; Castle v. Bader, 23 Cal. 75; Riddle v. Baker, 13 Cal. 295; Meeker V. Harris, 19 Cal. 278; 79 Am. Dec. 215; Crano v. Hirshfelder, 17 Cal. 407. 16. Action to cancel conveyance on the ground of fraud. As to statement of particular facta and circumstances, which may be required to show, on the face of complaint, that the convey- ance was fraudulently made, see Kohner v. Ash- enauer, 17 Cal. 578. Averment that grantee was a fictitious person, and that the conveyance was made to hinder and defraud creditors. Pur- kitt V. Polack, 17 Cal. 327. General averment of fraud as to conveyance, that it was to hinder and defraud creditors, etc. See Harris v. Taylor, 15 Cal. 348; also Hager v. Shindler, 29 (,'al. 47. The facts constituting the fraud must be defi- nitely and specifically alleged. Castle v. Bader, 23 Cal. 75; Snow v. Halstead, 1 Cal. 359; Oak- land V. Carpentier, 21 Cal. 642. So, also, to vacate a patent on the ground of its fraudulent procurement. Semple v. Hagar, 27 Cal. 106. Where a deed was deposited with third person, to be delivered to grantee, but grantor sub- sequently directs third person not to deliver deed, it must be averred that third person has or is about to deliver such deed, or threatens so to do. See Fitch v. Bunch, 30 Cal. 208. Gen- erally as to averments in complaint, in action to set aside a conveyance, on ground of fraud, see cases above cited, and also Watts v. White, 13 Cal. 321; People v. Jackson, 24 Cal. 632; Hager V. Shindler, 29 Cal. 47; De Leon v. Higuera, 15 Cal. 483. 17. Complaint to set aside fraudulent convey- ance. In a suit for a fraudulent conveyance, it is not irrelevant or redundant to set out in de- tail the inceptive steps which culminated in the alleged fraudulent convevance. Perkins v. Center, 35 Cal. 714. 18. Complaint to compel reconveyance of one of two tracts of land granted by mistake. In an action to compel reconveyance of one of two tracts of land described in the same deed, which it is averred was conveyed by mistake, the com- plaint must show clearly that a mistake was committed, or explain why the plaintiff included in the conveyance the second tract, after having described the one intended to be conveyed. Bar- field V. Price, 40 Cal. 535. 19. What allegations sufficient for injunctions. See Bigelow v. Gove, 7 Cal. 135; Tuolumne Water Co. v. Chapman, 8 Cal. 392 ; Knowles v. Inches, 12 Cal. 212; Henshaw v. Clark, 14 Cal. 460; Hicks v. Michael, 15 Cal. 107; Head v. Fordyce, 17 Cal. 149; Hicks v. Compton, 18 Cal. 206. If the complaint does not show that no adequate or complete remedy at law exists, then injunction cannot be granted. Leach v. Day, 27 Cal. 645; Tomlinson v. Rubio. 16 Cal. 202; De Witt V. Hays, 2 Cal. 463; 56 Am. Dec. 352. See also McCann v. Sierra County, 7 Cal. 121. See, generally, for miscellaneous matters relating to sufficiency of averments, the above-cited cases, and also O'Conner v. Cnrbitt, 3 Cal. 370; Hihn V. Peck, 18 Cal. 640; Smith v. Sparrow, 13 Cal. 596; Coker v. Simpson, 7 Cal. 340; More v. Ord, 15 Cal. 204; McDonald v. Bear River etc. ilin- ing Co., 15 Cal. 145; Sanchez v. Carriaga, 31 Cal. 170; Logan v. Hillegass, 16 Cal. 200. An allegation, simply, of great and irreparable in- jury is insufficient; the facts stated must show the court that the apprehension of such injurv is well founded. De Witt v. Havs. 2 Cal. 403"; 56 Am. Dec. 352; Waldron v. Marsh, 5 Cal. 119; Branch Tnvniiike Co. v. Board of Supervisors, 13 Cal. 190; Leach v. Day, 27 Cal. 643. 20. Action to foreclose mortgage, liens, etc. Averments of ownership of note and mortgage. Rollins V. Forbes, 10 Cal. 299. Mortgage stipu- lating for payment of counsel fees, not exceeding five per cent of the amount due. see Carriere v. Minturn, 5 Cal. 435. A general averment, that a person who is joined as defendant with mort- gagor has or claims to have some interest in the premises, sufficient. See Anthony v. Nye, 30 §426 COMPLAINT. 340 Cal. 401; see, generally, Vassault v. Austin, 32 Cal. 597; Stringer v. Davis, 30 Cal. 318; Shafer V l^ear River etc. Mining Co., 4 Cal. 294; Hunt V. "Waterman, 12 Cal. 301. 21. Eedemption of mortgage. No alleeation of tender of amount due upon mortgage, previous to beginning action, need be made. Daubenspeck V. Piatt, 22 Cal. 330. 22. More than one ground of action stated in complaint. Action on contract, etc. It is neces- sary only for plaintiffs to state the facts of their case in ordinary and concise language, and if such facts shovs^ed that they had a right of ac- tion against the defendants, it is clearly suffi- cient, even though it also showed that they had a right to recover upon two different legal grounds. It may be (see facts of case) that the plaintiffs paid the money to the defendants by mistake, and also hold them liable as indorsers or guarantors. Either would constitute a good cause of action, and it does not make their com- plaint insufficient because they have two grounds of recovery instead of one. Mills v. Barney, 22 Cal. 247. 23. Action on contract. Complaint on con- tract for purchase by defendant of certain goods, to aver a readiness or offer of delivery or per- formance. Barron v. Frink, 30 Cal. 486. 24. Complaint on executory contract. In Dun- ham V. Pettee, 8 N. Y. 512, it was held, that in an e.xecutory contract for the sale of a quantity of iron, to be paid for on delivery within a cer- tain period, the obligations of the one party to pay and the other to deliver were mutual and dependent; and that in an action by the seller for the price, it was not enough simply to show the default of the purchaser, but that he must show that he was ready or offered to deliver the property. That whichever party in such casb seeks to enforce the contract against the other must show performance, or a tender of perform- ance, or a readiness to perform on his part; and that, until that is shown, he himself is in de- fault. Barron V. Frink, 30 Cal. 488. 25. Averment of damages in complaint for breach of contract. In a suit to recover dam-' ages for breach of a contract, it is suflicient that the complaint alleges the contract, tlie breach complained of, and general damages. Barber v. Cazalis, 30 Cal. 96. 26. Contract may be set forth in complaint in the precise terms in which it is written, or ac- cording to its legal effect. A contract may be declared on according to its legal effect, or in ha?c verba. If the former mode should be adopted, then the defendant may, by the rule of the common law in a proper case, crave oyer of the instrument; and if it appear that its provisions have been misstated, he may set out the con- tract in hiec verba, and demur on the ground of the variance. But where the plaintiff sets forth the contract in the terms in which it is written, and then proceeds by averment to put a false construction upon the terms, the allegations, as repugnant to the terms, should be regarded as surplusage to be struck out on motion. 1 Chittv's Pleading, p. 232; Stoddard v. T'readwell, 26 Cal. 300; see also Joseph v. Holt. 37 Cal. ^50. And consideration need not be alleged for a contract if the contract be set out in complaint in the very terms in which it is written. See McCartv V. Beach, 10 Cal. 461; Wills v. Kempt, 17 Cal. 101: see Civ. Code, §§1614, 1629. A written agreement imports consideration, and seals are abolished. 27. Complaint on written contract. Joseph v. Holt, 37 Cal. 250. 28. What should be stated in complaint in an action on a contract. The party to a written contract who has performed his part of it, can bring an action against the other party who has failed to fulfill, for work and labor done and performed; but the execution of the contract, its terms, the performance of the same on the part of the plaintiff, and the non-performance by the other party, and the damages sustained, should be alleged, and if there has been variation from the terms of the written contract in the pro- gress of the work, by consent of the parties, that fact should also be averred, and the perform- ance of the contract as varied stated in the com- plaint. When, by the terms of the contract, the Darty who has failed to fulfill was to execute his note for the money due, bis failure to do to- should be averred, for the ground of action against him is his failure to execute the note. O'Connor v. Dingley, 26 Cal. 17; see also, for pleadint;s on contract, Kalkman v. Baylis, 23 Cal. 303. 29. Assignment of breach of contract of guaranty. Dabovich v. Emeric, 7 Cal. 209. 30. Complaint, where correction of mistake in contract is sought. If a material clause has been omitted by mistake in drawing up a contract, a party seeking to avail himself of the actual con- tract must obtain a reformation of the writing, by a distinct proceeding to reform it, or by specially pleading the mistake in the suit in which the contract is pleaded, and asking its correction as independent relief. Under a plead- ing which simply states the terms of a con tract, the introduction of a written agreement respecting the subject-matter cannot be followed by oral 'proof of a material clause alleged to- have been omitted by mistake from the writing. Pierson v. McCahill, 21 Cal. 122. 31. Action upon an assignment of contract. If an action be brought on an assignment of a con- tract to one party by another, the pleadings should at least have alleged a positive transfer or assignment, and the character of it, so that the other party might be put upon notice of what he had to meet. Stearns v. Martin, 4 Cal. 229. 32. The performance of conditions precedent must be alleged. And if not alleged, the failure to do so must be taken advantage of by de- murrer in the lower court. The defect cannot be shown after verdict rendered. Happe v. Stout^ 2 Cal. 462 33. Waiver of tort. As to waiver of tort and maintenance of action upon other grounds, see Lubert v. Chauviteau, 3 Cal. 458; 58 Am. Dec. 415; Miller v. Van Tassel, 24 Cal. 463. But so, nlso, if the failure to comply with a contract is a tort, the party aggrieved may bring an action in tort, instead of an action upon the contract. Sheldon v. Steamship Uncle Sam, 18 Cal. 526; 79 Am. Dec. 193. 34. Assumpsit. Waiver of tort. If personal propei'.ty has been wrongfully taken, the tort may- be waived and an action in nature of assumpsit be maintained for the recovery of the value of the property so taken. Pratt v. Clark, 12 Cal. 89. 35. Action of trover. See Pelberg v. Gor- ham, 23 Cal. 349; Nickerson v. California Stage Co., 10 Cal. 520. Conversion is the gist of the action of trover, and must be alleged. Rogers t. Huie, 2 Cal. 571; 56 Am. Dec. 363. 36. Complaint in replevin. Lazard v. Wheeler, 22 Cal. 139 : lialleck v. Mixer, 16 Cal. 574. 37. Complaint in actions to recover property seized by sheriff under process. See § 689, post; see also Ghiradelli v. Bourland, 32 Cal. 585; Kendall v. Clark, 10 Cal. 17; 70 Am. Dec. 691; Towdy V. Ellis, 22 Cal. 650; Killey v. Scannell, 12 Cal. 73. 38. Condition precedent to be alleged. If the payment of a promissory note is agreed by the parties to be made conditional upon the payment by the payee of a certain debt of the payor, such payment is a condition precedent, and must be alleged in complaint to have been made, or plain- tiff's right of action on the note is demurrable. Rogers v. Cody, 8 Cal. 32-1. 39. Complaints in action for purchase-money for goods sold and delivered. The sale and de- livery of the goods to the defendant, the place and the manner in which the indebtedness ac- crued, and whether it was on account of defend- ant or another, must be alleged. Mershon v. Randall, 4 Cal. 324. Also, the amounts due sev- erally for either goods or money. Cordier ▼. Schloss, 18 Cal. 576. It is a sufficient allesation. which states that defendant is indebted to plain- tiff in a certain sum for goods sold and delivered to him at his reriuest, and that defendant has never paid for them. Abadie v. Carrillo, 32 Cal. 172 An allegation setting forth that plaintiffs had purchased "a quantity of malt from P. & W., then and there acting as the agents of defend- ant." is only another form of declaring that they had purchased from the defendant. It is suffi- ciently certain to prevent any misapprehension of its meaning, and is no good cause for de- murrer. Cochran v. Goodman, 3 Cal. 245. Ml DEMAND AND REFUSAL — CONSPIRACY — DAMAGES. §426 40. Facts which must be stated in complaint ■Jn such action. The nuuphunt contains several •cijuiit.s, whicli art' in tlie ordinary form of counts in indt'bitatus assumpsit, for ^oods sold and de- livered, and money paid and expended; and it is objected to, not by demurrer, but after answer, as defective in not stating facts sufficient to con- stitute a cause of action. The objection is not well taken. The complaint is sutTn'ient in its allegations, and if they were deemed too gen- oral, the defendant could have ai)plied for and ■obtained an order upon the plaintiffs to furnish a bill of particulars. It states a promise by the defendant, and its consideration and breach. -Alien V. Patterson, 7 N. Y. 476; 57 Am. Dec. 342; Beekman v. Platner, 15 Barb. 550; Adam V. Holley. 12 How. Pr. 326; Cudlipp v. Whipple, 1 Abb. Pr. 107; Freeborn v. Glazer, 10 Cal. 338. 41. Complaint in action for moneys had and received, loaned or paid out, etc. If the action is for money had and received to the use of the plaintiff, and the facts stated in the complaint show clearly that the defendants are in posses- sion of money which, in equity and conscience, they are bound to pay over, it is not demurrable. Kreutz v. Livingston, 15 Cal. 346. A demand must be alleged in the complaint. Reina v. Cross, 6 Cal. 31. Where the complaint shows the de- mand to be barred by the statute of limitations, it is demurrable. See Keller v. Hicks, 22 Cal. 457 ; 83 Am. Dec. 78. Averments in action to recover money loaned. See Lambert v. Slade, 3 Cal. 330. And it was held that in an action to recover money laid out and expended for another's benefit, the complaint stated a sufficient cause of action, which averred that defendant was justly dndebted to plaintiff in the sum of three thousand dollars, for money paid, laid out, and expended for the use and benefit of defendant, and at his special instance and request, to wit, at, etc., and on the first day of April, 1857, and in the sum of three thousand dollars, for money found to be ■ due from the defendant to plaintiff on an ac- count then stated between them, and the defend- ant being so indebted to the plaintiff, afterwards, to wit, on the day and year aforesaid, at the place aforesaid, undertook and faithfully prom- ised the plaintiff to pay the same, etc., and that •said sum is due and unpaid. De Witt v. Porter, 13 Cal. 171. An averment in a complaint, that • defendant owes plaintiff a certain sum for pro- fessional services rendered at a certain lime, at defendant's request, is sufficient, without alleging the value of the services, or defendant's promise to pav therefor. Wilkins v. Stidger, 22 Cal. 235; 83 Am. Dec. 64. 42. Money had and received. A complaint for money had and received must allege a de- mand, or it is demurrable. Greenfield v. Steamer ■Gunnell. 6 Cal. 68. 43. When tender of purchaEe-money is to be averred. In an action for non-delivery of pro- duce contracted for and to be delivered on demand and upon payment, it is not necessary to aver an actual tender; an averment that plaintiff was ready and willing to receive and pay for it was :Sufricient. 1 Parsons on Contracts, p. 449; Crosby V. Watkins, 12 Cal. 88. 44. When a demand must be averred. An al- legation that defendant sold to plaintiffs certain produce, and after the sale executed a guaranty that the share of plaintiffs should be at their disposal, and stating that a demand for the same and the refusal of the defendant to deliver, is demurrable, as it should have contained an as- signment of the breach of the contract of guar- anty, for the material point at issue is, whether the defendant undertook to deliver. In this case the sale operated as a delivery. There was no necessity of a demand on defendant, unless for the purpose of enabling him to comply with his guaranty. Dabovich v. Emeric, 7 Cal. 212. 45. Averment of a refusal to execute a deed. It was held that the failure to aver refusal is fatal to the action, and may be taken advantage of on the ground that the complaint does not state facts sufficient to constitute a cause of ac- tion. (See facts.) Dodge v. Clark. 17 Cal. 586. A refusal, or a breach of a contract, must be iStated in direct, plain, and unequivocal words. 3Ioore v. Besse. 30 Cal. 570. 46. When and how papers and records can be made part of a pleading. Records and papers cannot be made a part of a pleading by merely referring to them, and praying that they may be taken as a part of snch pleading, without annex- ing the originals or copies as exhibits, or incor- porating them with it, so as to form a part of the record in the cause. People v. De la Guerra, 24 Cal. 78. In an action to foreclose a mort- gage, the complaint referred to a copy of the mortgage annexed, and referred thereto for a correct description of the land, and this was held sufficient for the purposes of the action. See Emeric v. Tarns, 6 Cal. 155. 47. Complaints in actions to compel an account. In an action to compel an account, a comi)laint is sufiicient to entitle plaintiff to a decree direct- ing an account which alleges that plaintiff and defendants are parties in a company known as the "Miners' Ditch Company"; that defendants exclude plaintiff from participation in the busi- ness or benefit from it; that they have received large sums of money from the same, and refuse to account or pay him anything, etc. Smith v. Fagan, 17 Cal. 178. A request for and refusal to account must be alleged in complaint. Bush- nell V. McCauley, 7 Cal. 421. A complaint in an action for rents and proceeds from the leasing and the sale of certain property containing .-in averment, in general terms, that' a copartnership exists as to the property between plaintiff' ami defendants, without averring any partnership agreement, and then states that plaintiff acquired his interest in the property by the purchase of an undivided interest from other persons than defendants, does not state facts sufficient either for a dissolution and settlement of the affairs of a partnership, or for a partition. Bradley v. Harkness, 26 Cal. 69. 48. Complaint in actions to recover specific personal property. Complaint will be held de- fective if it appears that defendant came right- fully to the possession of the property, and no averment is made of demand and refusal to de- liver the property. Campbell v. Jones, 38 Cal. 508. 49. Demand and refusal, how pleaded. An averment that defendant "has failed, refused, and neglected so to return" the property sued for, is not an allegation of the special and formal de- mand and refusal to deliver, required in actions to recover specific personal property. Campbell V. Jones, 38 Cal. 508. 50. Complaint In an action for conspiracy. Where two or more persons are sued for a wrong done, it may be necessary to prove a previous combination, in order to secure a joint recovery; but it is never necessary to allege it, and if alleged, it is not to be considered as the gist of the action. That lies in the wrongful and damaging act done. Herron v. Hughes, 25 Cal. 560. 51. Pleadings in actions for damages. What must be averred. See Tuolumne County Vv'ater Co. V. Columbia etc. Water Co., 10 Cal. 193; Hoffman v. Tuolumne County Water Co., 10 Cal. 413; see also Hanson v. Webb, 3 Cal. 236. Grounds of damages to be specially averred. Stevenson v. Smith, 28 Cal. 102; 87 Am. Dec. 107. So, also, for loss of time, compensation for wages paid, etc. Dabovich v, Emeric, 12 Cal. 171. And if treble damages be given by statute, such must be stated, or statute recited in plead- ings. Chipman v. Emeric, 5 Cal. 239. 52. Complaint in action for damages. This case was for damages sustained by the plaintiff, by reason of the refusal of the defendant, sheriff of Siskiyou County, to execute to him a deed for land bought at public sale; but the complaint is fatally defective in this, that it alleges special damages arising from the inability to get rents and profits from the estate, a tavern in Yreka, without averring that the defendant in execution had any title to the premises, or that the plain- tiff, if the sheriff had made him a deed, would have been either entitled to receive or been able to recover jiossession of the property, or rents, or profits. Knight v. Fair, 12 Cal. 297. 53. Complaint in suit for damages against com- mon carrier. It is unnecessary to state a tender of fare. An allegation of the plaintiff's readi- ness and willingness to pay the carrier th.e legal amount of fare is sufficient. Tarbell v. Central Pacific R. R. Co., 34 Cal. 622. §42G COMPLAINT. 342 64. Damages for diversion of water. McDonald T. Bear River etc. Mining Co., 15 Cal. 145; Gale V. Tuolumne Water Co., 14 Cal. 25; Leigh Co. V. Independent Ditch Co., 8 Cal. 323. 55. Actions for damage or trespass. The words, "with force and arms, lircike and entered," do not confine the proof to the direct and immediate damages, in the same manner as in the old action uf trespass, and the tacts being clearly set out in the complaint, the addition of these words is surplusage. Darst v. Rush, 14 Cal. 81. Averment of possession to sustain complaint for trespass. McCarron v. OXonnell, 7 Cal. 152. As to matters generally, see Gates v. Kiefif, 7 Cal. 124. 56. Damages for infringement on franchise. In an action to recover damages, by the owner of a licensed ferry, against a party alleged to have run a ferry withiu the limits prohibited by lavv', it was held that the complaint should have al- leged that defendant ran his ferry for a fee or reward, on the promise or expectation ■ of it, or that he ran it for other than his own personal use or that of his family; that the omission of those allegations was fatal. Hanson v. Webb, 3 Cal. 237. 57. Complaint in action of account between co- tenants. The complaint avers a tenancy in com- mon between the parties; the sole and exclusive possession of the premises by the defendant; the receipt by him of the rents, issues, and profits thereof; a demand by the plaintilf of an account of the same, and the payment of his share ; the defendant's refusal; and that the rents, issues, and profits amount to eighty-four thousand dol- lars. These averments, and not the form in which the prayer for judgment is couched, must deter- mine the character of the pleading. The com- plaint is designated a bill in equity; but the designation does not make it such. There are no special circumstances alleged which withdraw the case from the ordinary remedies at law, and re- quire the interposition of equity. The action is a common-law action of account, and, viewed in this light, the complaint is fatally defective. It does not aver that the defendant occupied the premises upon any agreement with the plaintiff, as receiver or bailiff of his share of the rents and profits. It is essential to a recovery that this circumstance exists, and equally essential to the complaint that it be alleged. Pico v. Colum- bet, 12 Cal. 419; 73 Am. Dec. 550. 58. Suits for divorce. What must be averred. In an action for divorce on the ground of adul- tery, the charge should have been stated with reasonable certainty as to time and place, so as to have enabled the defendant to prepare to meet it on the trial. Conant v. Conant, 10 Cal. 254; 70 Am. Dec. 717. The information should ex- tend to the particular place or locality where it occurred, though the name of the person with whom may be unknown. Conant v. Conant, 10 Cal. 254; 70 Am. Dec. 717; see also Codd v. Codd, 2 Johns. Ch. 224; Wood v. Wood, 2 Paige, 118; Richards V. Richards, V/right (Ohio), 302; Stokes V. Stokes, 1 Mo. 322; Wright v. Wright, 3 Tex. 168. Averment of residence in state for six months before applying for divorce. Civ. Code, §128; Bennett v. Bennett, 28 Cal. 599; see, gen- erally, Civ. Code, §§ 82-148, inclusive, and notes. 59. Complaint averring failure or insuflaciency of consideration. See Keller v. Hicks, 22 Cal. 457: S3 Am. Dee. 78. But a partial failure of consideration cannot be pleaded. See Reese v. Gordon, 19 Cal. 147. 60. Actions on notes, bills of exchange, etc. Complaint upon promissory note should allege the non-payment thereof, not that a certain amount is due thereon. Frisch v. Caler, 21 Cal. 71 ; Brown v. Orr, 29 Cal. 120. Where com- plaint stated that defendant made and delivered note to plaintiff, a further allegation, that plain- tiff "is still the owner and holder of the note," is a conclusion of law. See Wedderspoon v. Rogers, 32 Cal. 569. A complaint, which re- gards the maker and the guarantor of a note as joint makers, and contains no allegation of de- mand and notice, is demurrable. Lightstone v. Laurencel, 4 Cal. 277. In a suit against the maker of a note, or the acceptor of a bill of ex- change, where the place of payment is fixed, an averment of presentment at that place, and re- fusal to pay, is unnecessary. Montgomery v. Tutt, 11 Cal. 307. No allegation of a promise in writing is required in a suit brought upon a promise made by the defendant to accept a dralt which another might draw to him. Wakefield v. Greenhood. 29 Cal. 597. An indorser of a note, payable on demand, demand not being made until tnirteen months after the indorsement to plain- tiff, is, prima facie, not liable. The delay is unreasonable. In such case, tacts to excuse the delay are an essential part of the complaint, and must be alleged. Jerome v. Stebbins, 14 Cal. 457. Where demand is barred, new promise to be alleged. Smith v. Richmond, 19 Cal. 476. 61. Pleading statute of limitation. New prom- ise, etc. See note to § 312, aijte ; see also, par- ticularly, § 458, post. 62. Actions upon undertakings. Description of the bond in complaint. Mills v. Gleason, 21 Cal.. 274; Morgan v. Thrift, 2 Cal. 562; Baker v. Cornwall, 4 Cal. 15. Action for breach, no notice to defendant need be averred. People v.. Edwards, 9 Cal. 286. Undertaking on appeal. Tissot v. Darling, 9 Cal. 278. Bond for release of property attached. Palmer v. Melvin, 6 Cal. 651; McMillan v. Dana, 18 Cal. 339; William- son v. Blattan, 9 Cal. 500. Actions against sureties on injunction bonds. Tarpey v. Shillen- berger, 10 Cal. 390; Lally v. Wise, 28 Cal. 540. Recognizance under Penal Code. People v. Smith, 18 Cal. 498; Mendocino County v. Lamar, 30 Cal. 627. Undertaking given in replevin suit. Clary v. Rolland, 24 Cal. 147; Mills v. Gleason,. 21 Cal. 274. Actions on official bonds Averments in com- plaint. Mendocino County v. Morris, 32 Cal. 145; Ghiradelli v. Bourland, 32 Cal. 585; Van. Pelt V. Littler, 14 Cal. 194; Sacramento County V. Bird, 31 Cal. 66. 63. Action for collection of taxes. People v. Pico, 20 Cal. 595; People v. Holladay, 25 CaL 300. 64. Claims against estates of decedent's execu- tors and administrators. The failure of plaintiff to aver in complaint, in an action upon a claim against an estate, its presentation to and rejec- tion by the administrator, is an objection that is demurrable on the ground that the complaint does not state facts sufficient to constitute a cause of action. Ellissen v. Halleck, 6 Cal. 393; Falkner v. Folsom's Executor, 6 Cal. 412; Hentsch v. Porter, 10 Cal. 558; but these cases are overruled by Fallon v. Butler, 21 Cal. 24; 81 Am. Dec. 140; and the correctness of the latter decision is questioned in Ellis v. Polhemus, 27 Cal. 354. The case of Ellissen v. Halleck, C Cal. 393. is referred to in the following cases: Falkner v. Folsom's Executor, 6 Cal. 412; Mc- Cann v. Sierra County, 7 Cal. 123; Williamson V. Blattan, 9 Cal. 500; Piercy v. Sabin, 10 Cal. 30; 70 Am. Dec. 692; Willis v. Farley, 24 Cal.- 498. 65. Complaint by or against executor, etc. Complaint must allege that executor is entitled to sue in that capacity; or if suit is against an administrator, the complaint must show that the party sued was appointed and was acting in such capacity. Barfield v. Price, 40 Cal. ?<^H. 66. Complaint against absent debtor. If the- plaintiff desire to subject the assets of an absent debtor to the payment of his claim, he must show that he is without a remedy at law ; and if the complaint discloses such remedy at law, it- will be dismissed upon demurrer. Lupton v. Lupton, 3 Cal. 120. 67. Filing supplemental complaint. It was. held that it is no objection to a supplemental, complaint that it prays for a different relief, and fails to bring in all the other creditors, who- are alleged by the defense as entitled to a rat- able distribution. (See facts.) Baker v. Bartol,. 6 Cal. 483. 6S. Demand for relief. See § 580, post. The court will grant such relief as the facts stated. in the complaint will justify. People v. Turner, 1 Cal. 152: Truebody v. Jacobson, 2 Cal. 269; Rollins V. Forbes, 10 Cal. 299. A complaint in trespass may conclude with a demand for in- junction. Gates v. Kieff, 7 Cal. 125. So, also, where action is brought to test priority of ap- propriation of water. Marius v. Bicknell, 10 Cal. 217. Demand for treble damages must be expressly inserted. How inserted. See Chip- man v. Emeric, 5 Cal. 239. 343 STATEMENT — DIVORCE — CAUSES OF ACTION UNITED. §§ 426a, 427 § 426a. Statement of facts in divorce complaint. Tn an action for divorce the complaint must set forth, for the statistics required to be eollocted by the state bureau of vital statistics, among other matters as near as can be ascertained the following facts: (1) The state or country in which the parties were married. (2) The date of marriage. (3) The date of separation. (4) The number of 3'ears from marriage to separation. (5) The number of children of the marriage, if any, and if none, a state- ment of that fact. (6) The ages of the minor children. Legislation § 426a. Added by Stats. 1913, p. 232. § 427. What causes of action may be joined. The plaintiff may unite several causes of action in the same complaint, where they all arise out of : 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 contract or by operation of law ; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property ; " 8. Claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the fore- going subdivisions of this section. 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; provided, however, that in any ac- tion brought by the husband and wife, to recover damages caused by any injury to the wife, all consequential damages suffered or sustained by the husband alone, including loss of the services of his said wife, moneys ex- pended and indebtedness incurred by reason of such injury to his said wife, may be alleged and recovered without separately stating such cause of action arising out of such consequential damages suffered or sustained by the husband; provided, further, that causes of action for injuries to person and injuries to property, grov,ing out of the same tort, may be joined in the same complaint, and it is not required that they be stated separately. Legislation § 427. 1. Enacted March 11, out in 1913); (2) in final paragraph, adding 1872; based on Practice Act, § 64 (New York the second proviso. Code, § 167), as amended by Stats. 1855, p. 196. Joindpr of rant!f>«5 of nrtion in p-enpral The changes therefrom are noted infra. m, , • "I. ^^^^^^ °^ aCtlon, 111 general. 3. Amendment by Stats. 1901, p. 133; un- J- be plaintiff may unite several causes of constitutional. See note ante, § 5. action, where all the matters complained subd 8°^'^'"^'"^ ^^ ^*''*®- *^<*'^' P- "^OS, adding of ^re parts of one transaction (Pfister v. ^"4." Amended by Stats. 1913, p. 219, (1) in Dascey, 65 Cal. 403; 4 Pac. 393; Kyle v. introductory paragraph, striking out "they," be- Craig, 125 Cal. 107; 57 Pac. 791); and the fore "all arise"; (2) adding the first proviso fact that both legal and equitable causes to the end of the final paragraph. ^ j.- • • j i ^ 1 ] iu 5. Amended by Stats 1915, p. 30, (1) in in- ^^ action are jomed QOes not preclude the troductory paragraph, inserting "they" (stricken Court from granting the relief warranted §427 COMPLAINT. 344 by the facts. Gray v. Dougherty, 25 Cal. 266. It is the settled practice in equity, in order to avoid a multiplicity of suits, to allow suit, in the same action, for every species of relief necessary to secure the rights of the plaintiff in the subject- matter. Doudell V. Shoo, 20 Cal. App. 424; 129 Pac. 478. There is no requirement in the code that distinct causes of action shall correspond to or be consistent with each other. Cowan v. Abbott, 92 Cal. 100; 28 Pac. 213. Causes of action cannot be united, except when authorized by stat- ute (Smith V. Omnibus E. E. Co., 36 Cal. 281; Dyer v. Barstow, 50 Cal. 652; Rey- nolds V. Lincoln, 71 Cal. 183; 9 Pac. 176; 12 Pac. 449; Stark v. Wellman, 96 Cal. 400; 31 Pac. 259; Mallory v. Thomas, 98 Cal. 644; 33 Pac. 757; Thelin v. Stewart, 100 Cal. 372; 34 Pac. 861); and although expressly authorized, yet the plaintiff is not compelled to unite them. Eealty Con- struction etc. Co. V. Superior Court, 156 Cal. 543; 132 Pac. 1048. Damages arising from single wrongs, though at dift^ereut times, make but one cause of action. Hall v. Susskind, 109 Cal. 203; 41 Pac. 1012. A demurrer is properly sustained to a com- plaint which shows a misjoinder of causes of action aud of parties. Lapique v. Munroe, 19 Cal. App. 253; 125 Pac. 760. Causes of action ajrising out of con- tracts. Several causes of action arising out of contracts are properly united. Kel- ler V. Hicks, 22 Cal. 457; 83 Am. Dec. 78. Thus, a cause of action based upon an ex- press contract may be united with one based upon an implied contract. Cowan v. Abbott, 92 Cal. 100; 28 Pac. 213; 01m- stead V. Dauphiny, 104 Cal. 635; 38 Par. 505. An action upon a contract for the direct payment of money may be united with one arising out of a contract, wherein the damages for its breach are unliqui- dated, and for which the plaintiff is not entitled to a writ of attachment. Bald- win V. Napa etc. Wine Co.. 137 Cal. 646; 70 Pac. 732; Hathaway v. Davis, 33 Cal. 161. There is no misjoinder of causes of action in a suit in equity to settle the af- fairs of a partnership, where the subject- matter of the suit relates to but one transaction, and the principal relief asked is to establish the partnership and for an accounting of the partnership assets and business. Doudell v. Shoo, 20 Cal. App. 424; 129 Pac. 478; Bremner v. Leavitt, 109 Cal. 130; 41 Pac. 859. A cause of ac- tion for work and labor performed by the plaijitiff for the defendant may be joined with a similar cause assigned to the plain- tiff. Fraser v. Oakdale Lumber etc. Co., 73 Cal. 187; 14 Pac. 829. A cause of ac- tion for damages for breach of contract, with each term of the contract separately and specifically alleged, and all summed up in one general allegation of damages, may be joined with a cause of action on quan- tum meruit, which particularizes each item of work and labor performed and mate- rials furnished, and the reasonable value thereof, where they all arise out of con- tracts expressed or implied. Eemy v. Olds, 88 Cal. 537; 26 Pac. 355. A cause of ac- tion for a commission, based upon a sale of property made under a given state of facts, may be united with a cause of ac- tion based upon a sale made under another state of facts; both causes of action being based upon the same contract, and the plaintiff being entitled to recover upon either, he should not be compelled to elect upon which he will proceed. Eucker v. Hall, 105 Cal. 425; 38 Pac. 962; Wilson v. Smith, 61 Cal. 209. In an action for the l^urohase price of goods, an allegation that a further sum is due as interest does not constitute a separate cause of action. Friend & Terry Lumber Co. v. Miller, 67 Cal. 464; 8 Pac. 40. The owner of prop- erty adjacent to a street is not a party to a contract for the improvement of the street, made between the contractor and the superintendent of streets, within the meaning of the first subdivision of this section. Dyer v. Barstow, 50 Cal. 652. The plaintiff may unite, or sue separately on, causes of action for the foreclosure of a lien for street-work, as to each lot, under the same contract, although one person may own two or more of such lots. Eealty Con- struction etc. Co. v. Superior Court, 165 Cal. 543; 132 Pac. 1048. Several causes of action upon contracts for the direct payment of money may be united, where one of them is secured by pledge of per- sonal property, while the others are un- secured. Baldwin v. Napa etc. Wine Co., 137 Cal. 646; 70 Pac. 732. Where the con- tract alleged is an entirety, and the de- fendant's promises are all founded upon tbe same consideration, the plaintiff may ask for a money judgment, and for the s^jecific performance of an agreement to convey; and it is his duty to unite both in the same action, if he wishes to enforce both. Mann v. Higgins, 83 Cal. 66; 23 Pae. 206. Causes of action on contract and tort. A cause of action for breach of contract cannot be joined with one for injuries re- sulting from a tort (Stark v. Wellman, 96 Cal. 400; 31 Pac. 259); nor can a cau^e of action for the violation of the terms of an express contract be joined with one for the conversion of personal propertv (Stark V. Wellman, 96 Cal. 400; 31 Pac. 2.d9) ; but, if they arise out of the same transaction, actions ex delicto and actions ex contractu may be joined. Bonlden v. Thompson, 21 Cal. App. 279; 131 Pac. 755. Claims to recover specific real property. A claim to recover specific real property, with damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same, may be united. Furlong v. Cooney, 72 Cal. 322; 14 Pac. 12; Sullivan v. Davis, 4 Cal. 291. 345 CAUSES OF ACTION UNITED — MUST AFFECT ALL PARTIES. §427 Causes of action to recover possession of several distinct and separate parcels of land may be united, where they are sepa- rately stated, affect all the parties to the action, and do not require diiferent places of trial. Boles v. Cohen, 15 Cal. 150. Claims for rents, issues, and profits, and for damaj^cs for withholding, in an action to recover specific real property, are in the nature of alleged trespass for mesne profits, which can be recovered only after or contemporaneously with judgment for the recovery of possession of the demanded premises; and, when united with eject- ment, judgment for such damages can be rendered only when there is also judgment for recovery of possession. Locke v. Peters, Go Cal. 161; 3 Pac. 657. Specific real property, with damages, may be re- covered; but recovery of damages cannot be had, where the plaintiff fails to recover the property. Carpentier v. Mendenhall, 28 Cal. 484; 87 Am. Dec. 135. A cause of action to recover possession of real prop- erty may be joined with one for rents, is- sues, and profits. Beckman v. Waters, 3 Cal. App. 734; 86 Pac. 997. Claims to recover specific personal prop- erty. A cause of action to recover specific personal property, with or without dam- ages for the withholding thereof, cannot be united with a cause of action for in- jurv to the property. Hall v. Susskind, 109" Cal. 203; 41 Pac'. 1012. Claims against a trustee. A claim to enforce an express or implied trust may be united with a claim to enforce a ven- dor's lien existing without anv written con- tract. Burt v. Wilson, 28 Cal'. 632; 87 Am. Dee. 142, The cause of action in a com- plaint, under § 738, post, is not within the purview of the fourth subdivision of this section. Eevnolds v. Lincoln, 71 Cal. 183; 9 Pac. 176"; 12 Pac. 449. A complaint which states one cause of action in eject- ment and one for the establishment of a trust, is good, in the absence of a demur- rer for misjoinder of causes of action. Everson v. Mayhew, 85 Cal. 1; 21 Pac. 431; 24 Pac. 382. Several causes of action upon claims against a trustee, by virtue of a contract or by operation of law, may be united, though they may relate to dis- tinct parcels of real estate. Murphy v. Crowley, 140 Cal. 141; 73 Pac. 820. Injuries to character. In an action for conspiracy, which in one aspect is for the publication of a libel, and in another is for malicious prosecution, each cause of action should be separately stated in the complaint, so that the defendant may plead to them separately. W^hite v. Cox, 46 Cal. 169. Where the complaint alleges wrong- ful acts of the defendant, by which the property of the plaintiff is damaged, his character injured, and his health perma- nently impaired, there is a misjoinder of distinct causes of action. Lamb v. Har- baugh, 105 Cal. 680; 39 Pac. 56. Injuries to person. A cause of action for injury to the person cannot be joined with one for injury to property. Thelin v. Stewart, 100 Cal. 372; 34 Pac. 861; Scher- merhorn v. Los Angeles Pacific R. R. Co., 18 Cal. Apj.. 434; 123 Pac. 351. Injuries to property. Anv number of separate causes of action for distinct nui sauces may be united, where thev affect all the parties. Astill v. South Yuba Water Co., 146 Cal. 55; 79 Pac. 594. A cause of action to abate a nuisance may be united with one to recover damages incurred by reason thereof. Grandona v. Lovdal, "0 Cal. 161; 11 Pac. 623. A complaint seek- ing an injunction against the operation of a quarry, and for damages sustained thereby, does not set up two causes of action. Rooney v. Gray Bros., 145 Cal. 753; 79 Pac. 523. Where the several owners of a stream join as plaintiffs in an action for damages for diverting the waters of the stream, and for an injunction to restrain the further diversion thereof, the com- plaint is subject to a demurrer, both for a misjoinder of parties plaintiff and for a misjoinder of causes of action. Foreman V. Boyle, 88 Cal. 290; 26 Pac. 94. Transactions connected with same sub- ject-matter. A cause of action to quiet title and to declare a deed a mortgage, arising out of the same transaction, is not a union of two causes of action. Louvall V. Gridley, 70 Cal. 507; 11 Pac. 777. Two or more causes of action against a toll- collector, for penalties incurred for de- manding and collecting excessive toll, are improperly united, even if separately stated. Brown v. Rice, 51 Cal. 489. An action to foreclose a mortgage executed by two persons, to secure a note made by one of them, and praying for judgment againsc the maker of the note and for a decree of foreclosure against both, is not demurrable on the ground of misjoinder of causes of action. Rollins v. Forbes, 10 Cal. 299; Althof v. Conheim, 38 Cal. 230; 99 Am. Dec. 363; Bailey v. Dale, 71 Cal. 34; 11 Pac. 804; Levy v. Noble, 135 Cal- 559; 67 Pac. 1033. Causes of action must affect all parties. Causes of action which do not affect the same parties cannot be properly unitetl (.Johnson v. Kirbv, 65 Cal. 482; 4 Pac. 4.1S; Hall V. Susskind, 109 Cal. 203; 41 Pac. 1012); but a cause of action against a de- fendant individually may be united with a like cause of action against him in a repre- sentative capacity. Sacramento County v. Glann, 14 Cal. App. 780; 113 Pac. 360. A complaint stating eighteen separate and distinct causes of action, all in one count, and affecting eighteen different persons, is defective (People v. Central Pacific R. R. Co.. 83 Cal. 393; 23 Pac. 303); but, it having been settled that a defendant who is the owner of all the lots in a foreclosure suit may be joined in a simple action to enforce the lien, no difference is §427 COMPLAINT. 346 perceivable, where the single action is brought against three owners in common of all the lots in suit (Barber Asphalt Pav- ing Co. V. Crist, 21 Cal. App. 1; 130 Pac. 435); and where the suit is upon several distinct contracts, by the same parties, re- lating to the same transaction, involving joint and joint and several liabilities. Me- lander v. Western National Bank, 21 Cal. App. 462; 132 Pac. 265. Causes of action must belong to the same class. A complaint cannot mingle several distinct causes of action, not all belonging to any one of the classes mentioned. Cos- grove v. Fisk, 90 Cal. 75; 27 Pac. 56. Several causes of action, all arising out of injury to the person, or all arising out of injury to property, may be united, pro- vided that all the causes of action so united belong to one of the classes desig- nated in this section. Schermerhorn v. Los Angeles etc. R. R. Co., 18 Cal. App. 454; 123 Pac. 351. Causes of action must be separately stated. The provision for a separate state- ment of causes of action does not author- ize the joinder of separate causes of action to enforce separate forfeitures arising under a statute. Smith v. Omnibus E. E. Co., 36 Cal. 281; Eeed v. Omnibus E. E. Co., 33 Cal. 212. Where the com- plaint includes two or more of the several classes, and does not separately state the causes of action, but unites them in one count, there is a clear violation of the provisions of the act (McCarty v. Fre- mont, 23 Cal. 196) ; but a misjoinder of causes of action, which does not affect the substantial rights of the parties, is not ground for a reversal of the judgment. Eeynolds v. Lincoln, 71 Cal. 183; 9 Pac. 176; 12 Pac. 449. Pleading one cause of action in several counts does not affect the substantial rights of the opposing party. Pennie v. Hildreth, 81 Cal. 127; 2:^ Pac. 398. The statement of a cause of action in several counts, instead of one, does not, of itself, render the complaint ambiguous and uncertain, or open to a general demurrer. Demartin v. Albert, 68 Cal. 277; 9 Pac. 157. The common counts cannot all be united in one count as one cause of action, without any specification of the sums due upon each several causes of action. Buckingham v. Waters, 14 Cal. 146. Each count must contain all the facts necessary to constitute a cause of ac- tion, and its defects cannot be supplied from statements outside of it, unless ex- pressly referred to in it, and not then if matters in it relate to the gravamen. Haskell v. Haskell, 54 Cal. 262; Baldwin V. Ellis, 68 Cal. 495; 9 Pac. 652; Pennie V. Hildreth, 81 Cal. 127; 22 Pac. 398; Bid- well v. Babcock, 87 Cal. 29; 25 Pac. 752; Green v. Clifford, 94 Cal. 49; 29 Pac. 331; Reading v. Beading, 96 Cal. 4; 30 Par-. 803; Hopkins v. Contra Costa County, 106 Cal. 566; 39 Pac. 933; Barlow v. Burns, 40 Cal. 351. Where separate counts are not necessary, and where the entire complaint states a cause of action, the judgment will not be reversed on the ground that each cause in the complaint is not complete. Pennie v. Hildreth, 81 Cal. 127; 22 Pac. 398. Forcible entry and forcible detainer are distinct offenses, or separate causes of action, and should be separately stated (Valencia v. Couch, 32 Cal. 339; 91 Am. Dee. 589); but the complaint cannot be amended for the purpose of stating forci- ble entry and forcible detainer in separate counts, where no objection is raised by demurrer to the complaint, which does not separately state each distinct offense. Valencia v. Couch, 32 Cal. 339; 91 Am. Dec. 589. Where the gist of the action is negligence, the plaintiff may set forth all the facts, the indirect consequences of which resulted in the injuries complained of. Fraler v. Sears Union Water Co., 12 Cal. 555; 73 Am. Dec. 562. A motion to compel a plaintiff to elect between counts is properly denied, where, in the first count, he alleges delivery to the defend- ants, under an agreement to make returns of i^roceeds at a given price, and the sec- ond count is laid on quantum valebat, and the third count alleges an agreement to sell and deliver for a fixed price. Es- trella Vinevard Co. v. Butler, 125 Cal. 232; 57 Pac. 980; Cowan v. Abbott, 92 Cal. 100; 28 Pac. 213. Remedy where causes of action not separately stated. Where causes of action may be properly united, but are not separately stated, the remedy is not by de- murrer, but by a motion to make the plead- ing more definite and certain, by separat- ing and distinctly stating the different causes of action. City Carpet Beating etc. Works v. .Jones, 102 Cal. 506; 36 Pac. 841; and see Bernero v. South British etc. Ins. Co., 65 Cal. 386; 4 Pac. 382; Eraser v. Oakdale Lumber etc. Co., 73 Cal. 187; 14 Pac. 829; Jacob v. Lorenz, 98 Cal. 332; 33 Pac. 119; Murphy v. Crowley, 140 Cal. 141; 73 Pac. 820. The defect of a failure to state separately the causes of action united in the complaint cannot be reached by a motion to dismiss the action. Wat- son v. San Francisco etc. R. R. Co., 50 Cal. 523. Where the complaint improperly unites two causes of action, advantage of the defect must be taken by demurrer, or it is waived. Reynolds v. Lincoln, 71 Cal. 183; 9 Pac. 176; 12 Pac. 449. It is not waived, however, where the defendant submits to trial, the objection having been previously raised by demurrer. Thelin v. Stewart, 100 Cal. 372; 34 Pac. 861. Joinder and splitting of claims for injury to person and property arising out of single tort. See notes 3 Ann. Cas. 464; Ann. Cas. 1912D, 256. Necessity under code practice that causes of action joined alfect all parties defendant. See note, 3 Ann. Cas. 285. 347 WHEN DEFENDANT MAY DEMUR. §430 Joinder of causes of action accruing to plaintiff Individually and in representative capacity. See note Ann. ('.as. ISUUl'.. I'J.SS. Whether injuries both to person and to prop- erty constitute but one or more than one cause of acUon. S.e notes 50 L. R. A. 161; 36 L. R. A. (N. S.) 240. Conclusiveness of judgment in wife's suit for personal injuries in husband's action for loss of services and expenses. See note 10 L. R. A. (N. S.) 140. Eight of husband to recover for loss of con- sortium through personal injury to wife. See note 33 L. K. A. (N. S.) 104-2. Right to join in one complaint claims of ordi- nary and gross negligence arising out of one state ■of facts. See note 31 L. R. A. (N. S.) 1.^58. CODE COMMISSIONERS' NOTE. 1. Con- tracts express or implied. A cau.se of action against an indorser on the note, and a cause of action in equity to foreclose the mortgage, were held to be properly joined. Eastman v. Turman, 24 Cal. 382. Mo.rtgage assigned as security for debt due by mortgagee — assignee may unite his causes of action against mortgagor, mortgagee, and parties having liens or eneuinbrances on the property mortgaged, and make these persons al! parties. Farwell v. Jackson, 28 Cal. 107. Ac- tion for foreclosure of mortgage made by hus- tand and wife together to secure a note made ■only by husband, cause of action against hus- "band for amount due on note and interest, and also against husband and wife for foreclosure and sale of property, held to be properly united. Tlollins V. Forbes, 10 Cal. 299. Legal and equi- table claims, founded upon instruments in writ- ing, may be united. Gray v. Dougherty, 2.5 Cal. ■266. Cause of action for enforcement of trust, ■either express or implied, may be united with <;ause of action to enforce vendor's lien e.xisting -without any written contract. Both of the claims teing founded on trusts, one lying in contract and the other arising by act and operation of law. Burt v. Wilson, 23 Cal. 638; 87 Am. Dec. 142. See also, generallv, under this head, Keller V. Hioks. 22 Cal. 4.57; 83 Am. Dec. 78; Weaver V. Conger, 10 Cal. 233. 2. Claims to recover specific real property, with or without damages, or for waste and the rents or profits. Sullivan v. Davis. 4 Cal. 291; Gale V. 'ruoliimne Water Co., 14 Cal. 'J.5. 3. Injuries to property. More v. Massini, 32 Cal. .595. 596, Claims for value of the property destroyed, and for the damages caused by its destruction, may be united. Tendesen v. Mar- shall, 3 Cal. 440. Uniting claim for injury and damages. S-'^^p Fraler v. Scars Union Water Co., 12 Cal. 555; 73 Am. Dec. 562. 4. Causes of action separately stated. Though united in one complaint, the different causes of action must be separately stated. McCarty v. I'remont, 23 Cal. 197; Buckingham v. Waters, 14 Cal. 146; Cordier v. Schloss. 18 Cal. 581. Kjeetment may be for two distinct pieces of land, but the two causes of action must be separately stated, affect all the parties to the aetion, and not require different places of trial. Boles V. Cohen, 15 Cal. 150. 5. Generally. A complaint against a sheriff and his sureties, averrinsr trespass of sheriff and against his sureties as signers of the bond, and not otherwise, the causes are not properly united. Ghiradelli v. Bourland, 32 Cal. 585. Claim for damages for personal tort cannot be united with claim properly cognizable in court of equity. Mayo v. Madden, 4 Cal. 27. .\ claim for the possession of real property, with dam- ages for detention, cannot be joined in the same complaint, under any system of pleading, with a claim for consequential damages arising from a change of a road, by which a tavern-keeper may have been injured in his business. Bowles v. Sacramento Turnpike etc. Co., 5 Cal. 225. A claim for damages may be united with a demand for a statutory penalty, in an action against a sheriff for failing to execute and return process. There is no necessity for bringing two suits. Pearkes v. Freer, 9 Cal. 642. CHAPTER III. DEMUEEEE TO COMPLAINT. 430. 431. When defendant may demur. Demurrer must specify grounds. May be taken to part. May answer and demur at same time. § 432. What proceedings are to be had when complaint is amended. § 433. Objection not appearing on complaint, may be taken by ansv/er. § 434. Objections, when deemed waived. §430. When defendant may demur. The defendant may demur to the complaint within the time required in the summons to answer, when it ap- pears upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; 2. That the plaintiff has not legal capacity to sue. 3. That there is another aetion pending between the same parties for the same cause ; 4. That there is a defect or misjoinder of parties plaintiff or defendant; 5. That several causes of action have been improperly united, or not sepa- rately stated ; 6. That the complaint does not state facts sufficient to constitute a cause of action ; 7. That the complaint is ambiguous ; 8. That the complaint is unintelligible ; or, 9. That the complaint is uncertain. General and special demurrer. See post, § 431. Demurring and answering at same time. Post, § 431. 441. Serving demurrer. Post, § 465. Judgment on demurrer. Post, § 636. Demurrer is an appearance. Post, § lOl^i. §430 DEMURRER TO COMPLAINT. 348 Waiving objections by not demniiing. Post, § 434. Legislation § 430. 1. Enacted March 11, 1872; re-enactment of Practice Act, § 40 (New York Code, § 144), as amended by Stats. 1859, p. 139. 2. Amendment by Stats. 1901, p. 133; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1907, p. 706, (1) striking out the word "or" at the end of subds. 1, 2 3, 4, 6; (2) in subd. 5, adding, after the word "or," the words "not separately staled" ; (3) rearranging subd. 7 into the present subds. 7, 8, 9, that subdivision formerly reading. "7. That the complaint is ambiguous, unintelligible, or uncertain." Objections ttiat may be reached by de- murrer. The code contemplates oue demur- rer to a pleading, in which may be taken any or all of the objections enumerated in this section (People v. Central Pacific K. E. Co., 76 C'al. 29; 18 Pac. 90); and no grounds of demurrer, other than those enumerated, can be considered. Kyle v. Craig, 12.5 C'al. 107; 57 Pac. 791; Mitchell v. Steelman, 8 Cal. 363; Hentsch v. Porter, 10 Cal. 555; Bernero v. South British etc. Ins. Co., 65 Cal. 386; 4 Pac. 382. A demurrer is a pleading-, within the meaning of the stat- ute and the common law. Davis v. Honev Lake Water Co., 98 Cal. 415; 33 Pac. 270. The oiSce of the demurrer is, not to set out the facts, but merely to raise ques- tions of law as to the sufSciency of the facts to constitute a cause of action or defense. Brenuan v. Ford, 46 Cal. 7; Cook V. De la Guerra, 24 Cal. 237. The legal character of the causes of demurrer is the same, whether assigned in a demurrer or in an answer. Brown v. Martin, 25 Cal. 82. Want of consideration for the execu- tion of an instrument, apparent from the averments of the complaint, may be taken advantage of by demurrer (MeCarty v. Beach, 10 Cal. 461; Mulford v. Estudillo, 17 Cal. 618); and also where the agree- ment sued on is within the statute of frauds (Harper v. Goldschmidt. 156 Cal. 245; 134 Am. St. Rep. 124; 104 Pac. 451V and the failure of a complaint, based upon alleged fraud, to aver facts showing fraud, is ground of demurrer. Cosgrove v. Fisk, 90 Cal. 75; 27 Pac. 56; Pavne v. Elliot, 54 Cal. 339; 35 Am. Eep.^SO; Pehrson v. Hewitt, 79 Cal. 594; 21 Pac. 950. Conclu- sions of law are not admitted by a demur- rer. Buttner v. Kasser, 19 Cal. App. 755; 127 Pac. 811. The pleading must show on its face a cause of demurrer. Mulford v. Estudillo, 17 Cal. 618; Miles v. Thorne, 38 Cal. 335; 99 Am. Dee. 384. Thus, a failure to serve a copy of the complaint with the summons is not a ground of demurrer, the omission not appearing on the face of the complaint. Ghiradelli v. Greene, 56 Cal. 629. Only the defects appearing on the face of the complaint can be reached by demurrer; defects or uncertainties, made apparent only by allegation of facts, cannot be raised bv it. Cook v. De la Guerra, 24 Cal. 237"; Kamm v. Bank of California, 74 Cal. 191; 15 Pac. 765; Mul- ford V. Estudillo, 17 Cal. 618; Ghiradelli V. Greene, 56 Cal. 629. Irrelevant and im- material matters in the complaint, which do not affect the suflQciency thereof, can- not be reached by demurrer, but must be made the subject of a motion to strike out. Bremner v. Leavitt, 109 Cal. 130; 41 Pac. 859. An objection to a pleading^ which contains all the essential averments,, but states them in form too general tO' enable the defendant to meet them by a specific technical defense, should be met, not by demurrer, but by motion to make the pleading more specific. Pfister v. Wade, 69 Cal. 133; 10 Pac. 369; but see- contra, McFarland v. Holcomb. 123 Cal. 84; 55 Pac. 761. The prayer of the com- plaint is not a subject of demurrer (Rol- lins V. Forbes, 10 Cal. 299; De Leon v. Higuera, 15 Cal. 483; Poett v. Stearns, 28 Cal. 226; Althof v. Conheim, 38 Cal. 230; 99 Am. Dec. 363; Bailev v. Dale, 71 Cal. 34; 11 Pac. 804; Levy V. Noble, 135 Cal. 559; 67 Pac. 1033); neither is surplusage (Mitchell V. Steelman, 8 Cal. 363); nor will a matter of form be noticed on demurrer (Phelps V. Owens, 11 Cal. 22; Ward v. Clay, 82 Cal. 502; 23 Pac. 50, 227); hence, failure to specify the name of the county,, or the court or the title, or that the com- p)laint does not show where either of the parties resides, is not a ground of demur- rer (Otero V. Bullard, 3 Cal. 188); nor is an exception to an executor's account a pleading which may be demurred to (Es- tate of Sanderson, 74 Cal. 199; 15 Pac. 753) ; nor can want of verification of plead- ings be raised by demurrer (Turner v. Hamilton, 13 Wyo. 408; 80 Pac. 664) ; nor is the non-appearance, in the record, of the Christian name of one plaintiff, a good ground of demurrer (Nelson v. Highland, 13 Cal. 74); nor is the setting up two ac- counts for one cause of action, in the com- plaint (Kyle V. Craig, 125 Cal. 107; 57 Pac. 791); nor is an objection that the- statute gives a person another remedy (Triscony v. Brandensteiu, 66 Cal. 514; 6 Pac. 384); nor a failure to allege special' damage in an action for breach of con- tract (MeCarty v. Beach, 10 Cal. 461); nor a failure to show that plaintiffs were innocent purchasers in good faith and- without notice. McDermont v. Anaheim. Union Water Co., 124 Cal. 112; 56 Pac. 779. Plea of limitations. The bar of the stat- ute of limitations may be taken advantage- of by demurrer, where the defect clearly and affirmatively appears on the face of the complaint. Sublette v. Tinney, 9 Cal. 423; Barringer v. Warden, 12 Cal. 311;. Ord V. De la Guerra, 18 Cal. 67; Smith v. Hall, 19 Cal. 85; Mason v. Cronise, 20 Cal. 211; Brown v. Martin, 25 Cal. 82; Harmon V. Page, 62 Cal. 448; Farris v. Merritt, 63" Cal. 118; Cameron v. San Francisco, 68 Cal. 390; 9 Pac. 430; Wise v. Williams,. 72 Cal. 544; 14 Pac. 204; Wise v. Hogan,. 77 Cal. 184; 19 Pac. 278; Jenness v. Boweu,. 549 LACK OF LEGAL CAPACITY — ABATEMENT — MISJOINDER. §430 77 Cal. 310; 19 Pac. 522; Doe v. Sanger, 78 Cal. 150; 20 Pac. 3(56; Kraner v. Hal- sey, 82 Cal. 209; 22 Pat-. 1137; Kedington V. Cornwel], 90 Cal. 49; 27 Pac. 40; Pleas- ant V. Samuels, 114 Cal. 34; 4.5 Pac. 998; Williams v. Bergin, 116 Cal. 56; 47 Pac. 877; McFarland v. Holcomb, 123 Cal. 84; 55 Pac. 761; Lloyd v. Davis, 123 Cal. 348; 55 Pac. 1003. Where a counterclaim ap- pears upon the face of the answer to be barred by the statute, it must be specially pleaded to by demurrer on that ground, or it is waived. Bliss v. Sneath, 119 Cal. 526; 51 Pac. 848. A demurrer on the ground of the bar of the statute is sus- tained, not because the complaint states, .as the time when the cause of action ac- crued, any period, the time from which to the commencement of the action corre- sponds with the time prescribed in any particular statute as bar, but because the time, as stated since it accrued, exceeds the time defined as a limitation of actions of that nature. Boyd v. Blankman, 29 Cal. 19; 87 Am. Dec. 146. Where an allegation of the complaint is consistent with the conclusion that the debt is not barred, the defense must be raised by plea, and not by demurrer. Curtiss v. .<^tna Life Ins. Co., 90 Cal. 245; 25 Am. St. Rep. 114; 27 Pac. 211. The bar of the statute must be ■deemed to be included within the ground of want of facts sufficient to constitute a cause of action, though it is not specified in the code as a ground of demurrer. Bell V. Bank of California, 153 Cal. 234; 94 Pac. S89. Where the complaint shows that the statute has run, the defendant may set it up either by demurrer or answer; but ■when the complaint does not so show, the defendant must plead his right by answer. California Safe Deposit etc. Co. v. Sierra Talleys Ry. Co., 158 Cal. 690; Ann. Cas. 1912A, 729; 112 Pac. 274. Want of jurisdiction. Lack of jurisdic- tion must appear on the face of the com- plaint, to be a ground of demurrer. Doll V. Feller, 16 Cal. 432. Lack of legal capacity to sue. It must affirmatively appear that the plaintiff has no legal capacity to sue, to'be a ground of demurrer. Swamp etc. Land District v. Peck, 60 Cal. 403; Miller v. Lueo, 80 Cal. ^57; 22 Pac. 195; Wilhoit v. Cunningham, 87 Cal. 453; 25 Pac. 675; Locke v. Klun- ker, 123 Cal. 231; 55 Pac. 993; Redding Gold etc. Mining Co. v. National Surety Co., 18 Cal. App. 488; 123 Pac. 544. The want of capacity to sue can be raised by demurrer, onlj' it appears upon the face of the complaint. Redding Gold Min. Co. v. National Surety Co., 18 Cal. App. 488; 123 Pac. 544. The objection that the plaintiff has not legal capacity to sue must be taken by demurrer or answer, or it is waived. Bollinger v. Bollinger, 154 Cal. 695; 99 Pac. 196. The authority of the attorney- general to institute an action in behalf of the people, to determine adverse claims to real property, does not come within an ob- jection, raised by demurrer, of want of cai)acity in the plaintiff to sue, and it is doubtful if it comes within any of the grounds of demurrer mentioned in this sec- tion; the proper practice is to move to dis- miss the information. People v. Oakland Water Front Co., 118 Cal. 234; 50 Pac. 305. Plea in abatement. The general rule as to pleas in abatement is, that, before one suit can be pleaded in abatement of another, it must appear that the plaintiffs are the same in both suits. Ilcii'rich v. Romer, 16 Cal. App. 433; 118 Pac. 458. The pendency of a prior action, between the same parties, for the same cause, is a good plea in abatement. Goytino v. Mc- Aleer, 4 Cal. App. 655;' 88 Pac. 991. The general rule is, that articles of incorpora- tion must be of record in the clerk's office at the time that a plea in abatement is interposed; otherwise the plea is good. Riverdale Mining Co. v. Wicks, 14 Cal. App. 526; 112 Pac. 896. Defect or misjoinder of parties. The word "defect," as used in the fourth sub- division, means a defect in the complaint, by reason of having either too many or too few parties. Rowe v. Chandler, 1 Cal. 167. Misjoinder of parties may be taken advantage of by demurrer (Warner v. Wil- son, 4 Cal. 310; Peralta v. Simon, 5 Cal. 313; Jacks v. Cooke, 6 Cal. 164): but a de- murrer does not lie, where a defect of par- ties does not appear on the face of the complaint. Cook v. De la Guerra, 24 Cal. 237; Frost v. Harford, 40 Cal. 165. Mis- joinder of parties, not appearing on the face of the complaint, is not a ground of demurrer (Frost v. Harford, 40 Cal. 165); and where there is but one party defend- ant, a demurrer for misjoinder of parties defendant is properly overruled. Loren- zana v. Camarillo, 45 Cal. 125. Where a complaint is filed against several defend- ants, for several and distinct causes, hav- ing no relation to or dependence upon one another, a demurrer for misjoinder of par- ties and of causes of action will be sus- tained; but where several persons have been jointly concerned in a series of fraud- ulent transactions, they mav be united as defendants in an action to annul the fraud- ulent acts. Andrews v. Pratt, 44 Cal. 309. The non-joinder of necessary parties, plain- tiff or defendant, should be taken ad- vantage of by demurrer (Andrews v. Mokelumne Hill Co., 7 Cal. 330; Whitnev v. Stark, S Cal. 514; 68 Am. Dec. 360; Mac- Leod V. Moran, 11 Cal. App. 622; ]05 Pac. 932; Redfield v. Oakland Consol. Street Ry. Co., no Cal. 277; 42 Pac. 822, 1063); and if not taken by demurrer or answer, it is waived. Baker & Hamilton v. Lam- bert. 5 Cal. App. 708; 91 Pac. 340; Farmer V. Behmer, 9 Cal. App. 773; 100 Pac. 901. The failure of a partner to join his co- partners as parties plaintiff should be taken advantage of by demurrer (Wil- §430 DEMURRER TO COMPLAINT. 350 liams V. Southern Pacific R. E. Co., 110 Cal. 457; 42 Pac. 974); as should also the point that a person is a necessary party defend- ant. MacLeod v. Moran, 11 Cal. App. 622; 105 Pac. 932. In an action of foreclosure, a general allegation that the defendant had or claimed some interest in the mort- gaged premises is suiBcient as against a demurrer on the ground of defect of par- ties. Poett V. Stearns, 2S Cal. 226. A de- fendant against whom a sufficient cause of action is alleged cannot demur for mis- joinder of defendants, unless his interests would be affected thereby. Gardner v. Samuels, 116 Cal. 84; 58 Am. St. Rep. 135; 47 Pac. 935. A defect in parties plaintiff, apparent upon the face of the complaint, or it appearing therefrom that the plain- tiff has not the legal capacity to sue, must be taken advantage of by demurrer, on either ground, or it is waived. Tingley v. Times Mirror, 151 Cal. 1; 89 Pac. 1097. An objection for non-joinder of the hus- band, as a necessary party plaintiff, in an action by the wife, must be specially urged by demurrer if the matter appears on the face of the complaint, or by answer if it does not so appear. Work v. Campbell, 164 Cal. 343; 128 Pac. 943. Where new parties, plaintiff and defendant, were joined, in an amended complaint, without leave of coiirt, it must be presumed, upon appeal, that such complaint was filed by leave of court; and, as it supersedes the original, an objection thereto cannot be raised upon special demurrer to the com- plaint, but only on motion to strike out. Harvey v. Meigs, 17 Cal. App. 353; 119 Pac. 941. Several causes of action improperly united, or not separately stated. This sec- tion applies to causes of action which cannot be embraced in the same action, though separately stated, and not to causes of action which may properly be joined in the same action, but which are not sepa- rately stated; the remedy for the latter is by motion to make the pleadings more definite and certain. City Carpet Beating etc. Works v. Jones, 102'Cal. 506; 36 Pac. 841; Bernero v. South British etc. Ins. Co., 65 Cal. 386; 4 Pac. 382; Fraser v. Oakdale Lumber etc. Co., 73 Cal. 187; 14 Pac. 829; .Tacob V. Lorenz, 98 Cal. 332; 33 Pac. 119; Sutter County v. McGriff, 130 Cal. 124; 62 Pac. 412; San Francisco Paving Co. v. Fairfield, 134 Cal. 220; 66 Pac. 255; Mur- phy V. Crowley, 140 Cal. 141; 73 Pac. 820; but see contra, McFarland v. Holeomb, 123 Cal. 84; 55 Pac. 761. The fact that several causes of action were not sepa- rately stated was not ground of demurrer prior to the amendment of 1907 to this section. Huene v. Cribb, 9 Cal. App. 141; 98 Pac. 78. A joinder of causes of action, not all belonging to any one of the classes mentioned in § 427, ante, renders the com- plaint obnoxious to a demurrer on the ground that several causes of action are improperly united. Cosgrove v. Fisk, 90> Cal. 75; 27 Pac. 56; Watson v. San Fran- cisco etc. R. R. Co., 41 Cal. 17; Barber Asphalt Paving Co. v. Crist, 21 Cal. App. 1; 130 Pac. 435. Thus, a joinder of a. cause of action for injuries to a wife, with one in favor of the husband for loss of the services of and expenses in- curred for the wife, renders the complaint subject to demurrer for an improper joinder of causes of action (McKuue v. Santa Clara Valley Mill etc. Co., 110 Cal. 480; 42 Pac. 980); but a demurrer for mis- joinder of causes of action will not lie because several species of remedy may be had in the enforcement of a single right. Beronio v. Ventura County Lumber Co., 129 Cal. 232; 79 Am. St. Rep. 118; 61 Pac. 958. To entitle the plaintiff to puni- tive damages in an action for trespass to real property, circumstances of aggra- vation must be pleaded in such a man- ner as that there shall be no ambiguity or uncertainty in determining that they are set forth solely for the purpose of es- tablishing such claim; and if they ar& pleaded in such a manner as would be proper in an action brought to recover damages other than those for the tres- pass, the complaint will, for that reason, be subject to a demurrer for misjoinder of causes of action. Lamb v. Harbaugh, 105 Cal. 680; 39 Pac. 56. While a de- murrer lies where different causes of action are not separately stated, yet the fact that two independent contracts are included in one count is not prejudicial error, where they are treated as one. Fairchild etc. Co. V. Southern Refining Co., 158 Cal. 264; 110 Pac. 951. A complaint in an action to foreclose a street assessment, which otherwise states a good cause of action^ is not demurrable because containing a prayer for attorney's fees. Millsap v. Bal- four, 154 Cal. 303; 97 Pac. 668. The seek- ing of different kinds of relief does not establish different causes of action : a de- mand for alternative monetary relief is not subject to the objection that the com- plaint states two causes of action. Messer v. Hibernia Sav. & L. Soc, 149 Cal. 122; 84 Pac. 835. Insufficiency of facts to constitute a cause of action. This section applies to those cases in which no cause of action whatever arises from the complaint, and does not include cases in which misjoinder of parties appears upon the face of the pleading. Summers v. Parish, 10 Cal. 347; Tatum v. Rosenthal, 95 Cal. 129; 29 Am. St. Rep. 97; 30 Pac. 136. A general demurrer cannot reach objections going only to a part of the cause of action. McCann v. Pennie, 100 Cal. 547; 35 Pac. 158. In- sufficiency of the facts alleged may be tested by general demurrer. Callahan v. Broderick, 124 Cal. 80; 56 Pac. 782. In- ferential statements, or statements by way of recital, cannot be attacked by general 351 mSUPFlCIENCY OF FACTS TO CONSTITUTE CAUSE OF ACTION. §430 demurrer: it is available only where there is a total absence of some material fact. Bliss V. Siioath, 103 Cal. 43; 3G Pac. 1029; Santa Barbara v. Ehlred, 108 Cal. 294; 41 Pac. 410; Puller Desk Co. v. McDade, 113 Cal. 300; 45 Pac. 694; McKay v. New York Life Ins. Co., 124 Cal. 270; 56 Pac. 1112. A complaint entitling the plaintiff to relief, either legal or equitable, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action (White v. Lyons, 42 Cal. 279; Mora V. Le l\oy, 58 Cal. 8; McPhcrson v. Weston, 64 Cal. 275; 30 Pac. 842; Huls- man v. Todd, 96 Cal. 228; 31 Pac. 39; Whitehead v. Sweet, 126 Cal. 67; 58 Pac. 376; Jones v. Iverson, 131 Cal. 101; 63 Pac. 135; Poett v. Stearns, 28 Cal. 226); and where a complaint states a cause of action addressed either to the legal or equitable side of the court, it is good as against a general demurrer (Swan v. Tal- bot, 152 Cal. 142; 17 L. R. A. (N. S.) 1066; 94 Pac. 238); but the complaint must allow a cause of action in the plaintiff, or the general demurrer will lie: it is not suffi- cient that it show a cause of action in somebody. Dixon v. Cardozo, 106 Cal. 506; 39 Pac. 857. A complaint sufficient to sus- tain judgment is good as against general demurrer. Lawrence Nat. Bank v. Kowal- sky, 105 Cal. 41; 38 Pac. 517. A failure to state all the facts essential to recovery mav be attacked bv general demurrer. Tehama County v. Bryan, 68 Cal. 57; 8 Pac. 673; Hariiish v. Bramer, 71 Cal. 155; 11 Pac. 888. The pleader, in counting upon a contract according to its legal ef- fect, is not required to allege that the conditions stated are all of the conditions of the contract. Smith v. Jaecard, 20 Cal. App. 280; 128 Pac. 1023. A failure to al- lege the presentation of a claim to the administrator and a rejection by him, before the commencement of the action, is a ground of general demurrer; without it the complaint does not state facts suffi- cient to constitute a cause of action. Hentsch v. Porter, 10 Cal. 555; Ellissen v. Halleck, 6 Cal. .'!S6; Burke v. Mnguire, 154 Cal. 456; 9S Pac. 21. A failure to allege non-payment of money sought to be recovered may be reached by general de- murrer, on the ground that the complaint states no cause of action. Grant v. Sheerin, 84 Cal. 197; 23 Pac. 1094; Richards v. Travelers Ins. Co., 80 Cal. 505: 22 Pac. 939; Bliss V. Sneath, 103 Cal. 43; 36 Pac. 1029. An insufficient cause of action in intervention is properly met by demurrer, and not by motion to strike out. Cameron V. Ah Quong, 8 Cal. App. 310; 96 Pac. 1025. Where the facts necessary to sus- tain a cause of action are shown to ex- ist, although inaccurately or ambiguously stated, or appear by necessary im]>lication, a general demurrer to the complaint will be overruled (Amestov v. Electric Rapid Transit Co., 95 Cal. 311; 30 Pac. 550); such defects can be reached only by special demurrer (Semi-Tropic Spiritualists' Ass'u V. Johnson, 163 Cal. 639; 126 Pac. 488); as the complaint will be held good, where the necessary allegations ap])ear by way of legal conclusions, in the absence of a special demurrer. Wells Pargo & Co. v. McCarthy, 5 Cal. App. 301; 90 Pac. 203. If there is not an entire failure in a com- plaint to state non-payment, the averment is simply defective, and can be reached only by special demurrer directed to that point. Burke v. Dittus, 8 Cal. App. 175; 96 Pac. 330. The failure of the plaintiff, in an action on an assigned claim, to aver that he was the owner thereof at the time of the commencement of the action, is ground for special demurrer, but is good as against a general demurrer. Krieger v. Feeny, 14 Cal. App. 538; 112 Pac. 901. By anticipating a defense, in addition to stating a cause of action, the complaint is not rendered bad as against a general de- murrer. Munson v. Bowen, 80 Cal. 572; 22 Pac. 253. The b^r of the statute of limitations cannot be raised under a gen- eral demurrer that the complaint does not state facts sufficient to constitute a cause of action. Brown v. Martin, 25 Cal. 82; Farwell v. .Jackson, 28 Cal. 105; California Safe Deposit etc. Co. v. Sierra Vallevs Ry. Co., 158 Cal. 690; Ann. Cas. 1912A, 729; 112 Pac. 274. The failure of a plain- tiff corporation to aver that it is a cor- poration is not available, either upon general demurrer for want of a cause of action, or upon special demurrer for want of capacity to sue. Los Angeles Ry. Co. V. Davis, 146 Cal. 179; 106 Am. St. Rep. 20; 79 Pac. 865. The defense of laches may be raised by demurrer: it is, in sub- stance, a defense that the bill does not show equity, or in the language of this section, that the complaint does not state facts sufficient to constitute a cause of action. Kleinclaus v. Dubard, 147 Cal. 245; 81 Pac. 516; Wadleisrh v. Phelps, 149 Cal. 627; 87 Pac. 93. A clerical error in a complaint cannot be taken advantage of bv general demurrer. Blasingame v. Home Ins. Co., 75 Cal. 633; 17 Pac. 925. An ob- jection that the averments of a complaint are contradictory cannot be raised upon a general demurrer: it must be presented bv a special demurrer for uncertainty (Heeser v. Miller, 77 Cal. 192; 19 Pac. 375; Churchill v. Lauer, 84 Cal. 233; 24 Pac. 107) ; nor can an objection to a vari- ance between an exhibit and the allega- tions of a complaint be raised by general demurrer (Blasingame v. Home Ins. Co., 75 Cal. 633; 17 Pac. 925; San Francisco Sulphur Co. V. ..^tna Indemnity Co., 11 Cal. App. 695; 106 Pac. Ill); nor can ob- jection be taken for defectiveness in the complaint, because the facts are inarlifi- cially stated. Nevin v. Thompson, 4 Cal. Unrep. 390; 35 Pac. 160. A cause of ac- tion stated in only one of several counts §430 DEMURRER TO COMPLAINT. 353 of a complaint is sufficient as against a demurrer ou the ground "that said com- plaint does not allege facts sufficient to constitute a cause of action." Jensen v. Dorr, 159 Cal. 742; 116 Pac. 553. Where the complaint in a suit brought for breach of a contract payable in installments fails to show that an installment, the payment of which was required under the contract, had been due and unpaid for the pre- scribed period, it shows no cause of action upon the contract. Southern California Music Co. V. Skinner, 17 Cal. App. 205; 119 Pac. 106. Where there is no attempt to aver non-payment of money due upon a contract, either by an allegation amount- ing only to a conclusion of law, or other- wise, the complaint does not state a cause of action; and this can be urged at any time, even without a demurrer. Burke v. Dittus, 8 Cal. App. 175; 96 Pac. 330. The failure of a corporation to allege that it has filed its articles is not a failure to al- lege a cause of action, and is therefore not a ground of den^urrer. Bernheim Dis- tilling Co. V. Elmore, 12 Cal. App. So; 106 Pac. 720; Eiverdale Mining Co. v. Wicks, 14 Cal. App. 526; 112 Pac. 896. A de- murrer to a complaint for a money judg- ment on a promissory note and for breach of contract, should be sustained, on the ground that the complaint does not state facts sufficient to constitute a cause of action, where the note is not due, and no breach of the contract is shown. Southern California Music Co., 17 Cal. App. 205; 119 Pac. 106. Ambiguity, uncertainty, and unintelligi- iDility. That the complaint is ambiguous, unintelligible, or uncertain is made a ground of demurrer: a motion to make it more definite and certain is not proper prac- tice. McFarland v. Holcomb, 123 Cal. 84; 55 Pac. 761. Ambiguity and uncertainty are made separate grounds of demurrer by this section. Wilhoit v. Cunningham, 87 Cal. 453; 25 Pac. 675. Unintelligibility is a ground of demurrer (Tibbets v. Riverside Land etc. Co., 61 Cal. 160); as is also uncertainty (Kraner v. Halsey, 82 Cal. 209; 22 Pac. 1137; Mallory v. Thomas, 98 Cal. 644; 33 Pac. 757; South- ern California Music Co. v. Skinner, 17 Cal. App. 205; 119 Pac. 106; Du Bois v. Padgham, 18 Cal. App. 298; 123 Pac. 207); but uncertainty does not include ambi- guity. Kraner v. Halsey, 82 Cal. 209; 22 Pae. 1137. The objection of uncertainty goes rather to the doubt as to what the pleader means by the facts alleged, not to the failure to allege sufficient facts. Cal- lahan V. Broderick, 124 Cal. 80; 56 Pac. 782. A complaint is neither ambiguous nor uncertain, where the precise purpose of the action and the relief sought clearly appear. Doudell v. Shoo, 20 Cal. App. 424; 129 Pac. 478. Where the complaint is easy of comprehension and free from reasonable doubt, it is not subject to de- murrer ou the ground of ambiguity. Sal- mon V. Wilson, 41 Cal. 595; Applegarth V, Dean, 68 Cal. 491; 13 Pac. 587; Kraner V. Halsey, 82 Cal. 209; 22 Pac. 1137; Whitehead v. Sweet, 126 Cal. 67; 58 Pac. 376; Jones v. Iverson, 131 Cal. 101; 63 Pac. 135. A mere clerical error in the complaint is not objectionable to a de- murrer for ambiguity, unintelligibility, and uncertainty. Fay v. McKeever, 59 Cal. 307; Hawley Bros. Hardware Co. v. Brown- stone, 123 Cal. 643; 56 Pac. 468. A com- plaint which in one part avers a covenant for a lease, and in another states matter which constitutes a contract for a present lease, is ambiguous. Crow v. Hildreth, 39 Cal. 618. A complaint for trespass, which fails to state separately the items of damages to the premises, and the dam- ages sustained by injuries to the plain- tiff's business, is subject to a demurrer for uncertainty. Mallory v. Thomas, 98 Cal. 644; 33 Pac. 757; Lamb v. Harbaugh, 105 Cal. 680; 39 Pac. 56. A failure to set forth the items of an account in a com- plaint is not a ground for a demurrer for ambiguity or uncertainty. Burns v. Cush- ing, 96 Cal. 669; 31 Pac. 1124; Rogers v. Duff, 97 Cal. 66; 31 Pac. 836; Farwell v. Murray, 104 Cal. 464; 38 Pnc 199; Pleas- ant V. Samuels, 114 Cal. 34; 45 Pac. 998; Long Beach City School Dist. v. Dodge, 135 Cal. 401; 67 Pac. 499. A failure to state the times at which services were rendered, or when the claim for the items thereof accrued, does not authorize a de- murrer for ambiguitv or uncertainty. Mc- Farland V. Holcomb, 123 Cal. 84; 55 Pac, 761. A failure to state, in an action to foreclose a lien, the date when such lien was filed and recoriled, renders it subject to a demurrer for uncertainty. William- son V. Joyce, 137 Cal. 151; 69 Pac. 980. The objection that two causes of action are not separately stated cannot be taken by demurrer. Murphy v. Crowley, 140 Cal. 141; 73 Pac. 820. A complaint to annul a corporate assessment on the ffround of illegality in the proceedings, which fails to allege the matters constituting such illegality, is demurrable for uncertainty. Hennessey v. Alleghany Mining Co., 159 Cal. 398; 113 Pac. 107l" Where the prop- erty of an estate, such as notes and mort- gages, is alleged to have been concealed, but uncertainty appears in the description thereof, and no reasonable excuse is given why they are not particularly describeause of action, does not raise the ques- tion. Hentsch v. Porter, 10 Cal. 555; Chase V. Evov, 58 Cal. .348; Coleman v. Wood- -worth, '28 Cal. 567; Bank of Stockton v. Howland, 42 Cal. 129; Bemmerlv v. Wood- ward, 124 Cal. 568; 57 Pac. 561. Where one count of a complaint is good, the ob- jection that the other counts do not state facts sufficient to constitute a cause of ac- tion, is not waived by failure to demur. Lyden v. Spohn-Patrick Co., 155 Cal. 177; 100 Pac. 2.36. An error in overruling a de- murrer to a complaint is cured, where the plaintiff subsequently amends his complaint in the particular to which the demurrer was directed, and the amended complaint is not demurred to. Walsh v. McKeen, 75 Cal. 519; 17 Pac. 673. Objection for insufficiency of facts, not ■waived. An objection that the complaint does not state facts sufficient to constitute a cause of action, may be urged at any time, without demurrer (Flood v. Temple- ton, 148 Cal. 374; 83 Pac. 148; Arnold v. American Ins. Co., 148 Cal. 6(30; St Pac. 182; Neale v. Morrow, 163 Cal. 445; 145 Pac. 1052; Wells Fargo & Co. v. McCarthy, 5 Cal. App. 301; 90 Pac. 203; Burke v. Dittus, 8 Cal. App. 175; 96 Pac. 330; Cam- eron V. Ah Quong, 8 Cal. App. 310; 96 Pac. 1025), except where the benefit of a per- sonal privilege, such as the statute of limi- tations, is claini(>d; consequently, an objec- tion to the failure of the comjdaint against an estate, on a contract, to allege the pre- sentation of a claim to the administrator is not waived, nor has the administrator any power to waive it. Burke v. Maguire, 154 Cal. 456; 98 Pac. 21. Where the complaint of an intervener, upon which the judgment in his favor is based, fails to state a cause of action for want of essential facts, objec- tion thereto is not waived by failure to de- mur. Cameron v. Ah Quong, 8 Cal. App. 310; 96 Pac. 1025. A stipulation that a general demurrer may be overruled does not estop the defendant from relying on the failure of the complaint to state a cause of action, at any subsequent stage of the proceed- ings. Hitchcock V. Caruthers, 82 Cal. 523; 23 Pac. 48; Evans v. Gerken, 105 Cal. 311; 38 Pac. 725; Morris v. Courtney, 120 Cal. 63; 52 Pac. 129. The fact that the de- murrer was overruled by consent does not preclude the defendant from attacking the judgment on the ground that it rests on a complaint inherently defective. Banburv v. Arnold, 91 Cal. 606; 27 Pac. 934; Jones V. Los Angeles etc. Ry. Co., 4 Cal. Unrep. 755; 37 Pac. 656. The failure of the com- plaint to state facts sufficient to constitute a cause of action cannot be disregarded on appeal, though a demurrer was interposed on such ground and overruled. Conde v. Dreisam Gold Mining Co., 3 Cal. App. 583; 86 Pac. 825; Haskell v. Moore, 29 Cal. 437. A general demurrer is not waived by the filing of an answer subsequently to the overruling of the demurrer. Hurlev v. Ryan, 119 Cal. 71; 51 Pac. 20; Curtiss v. Bachman, 84 Cal. 216; 24 Pac. 379. CODE COMMISSIONERS' NOTE. See note 8 to § 430, ante. CHAPTER IV. ANSWEE. § 437. Answpr, what to ront;iin. § 437a. Actions to recover insurance. What de- fendant claiming exemption must set up. § 438. When counterclaim may be set up. § 439. When defendant omits to set up counter- claim. § 440. Counterclaim not barred by death or as- siynmont. § 441. Answer may contain several grounds of defense. Defendant may answer part and demur to part of complaint. § 442. Cross-complaint. § 437. Answer, v/hat to contain. 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 counterclaim. §437 ANSWER. 360 If the complaint be verified, the denial of each allegation controverted must be specific, and be made positivel}^ or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the com- plaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint. 373; 105 Pac. 130. If several material facts are stated conjunctively in a verified complaint, an answer which undertakes to Fleas in abatement. See ante, § 430. Amendment. Post, §§ 472, 473. Appearance, answering is. Post, § 1014. Counterclaim. Post, §§ 438-441. Cross-complaint. Post, § 442. Death of party. Ante, § 385. Disability of party. Ante, § 385. Errors and defects to be disregarded. Post, §4^ Gold, coin, etc. Allegations as to money being payable in, should be denied. Post, § 667. Striking out. Post, § 453. Supplemental answer. Post, § 464. Time to answer, extension of. Post, § 1054. Writing, setting forth, in answer, effect of. Post, §§ 448, 449. Particular actions, answers in. See specific title. Legislation § 437. 1. Enacted March 11, 1873; evidently based on Practice Act, § 46, as amended by Stats. 1865-66, p. 702, which read: "The answer of the defendant shall contain: 1. If the complaint be verified, a specific denial to each allegation of the complaint controverted by the defendant, or a denial thereof according to his information and belief; if the complaint be not verified, then a general denial to each of said allegations, but a general denial shall only put in issue the material and express allegations of the complaint. 2. A statement of matter in avoidance, a counterclaim constituting a defense, or the subject-matter of cross-complaint which may entitle a defendant to relief against the plaintiff alone, or against the plaintiff and a co- defendant." When enacted in 1872, (1) in subd. 1, (a) "shall only put" was changed to "only puts." and (b) the words "and express" were" stricken out before "allegations'; (2) subd. 2 was changed to read, "2. A statement of any new matter in avoidance, or constituting a de- fense or counterclaim." 2, Amended by Code Amdts. 1873-74, p. 300. Form of denial. Any form of denial •which fairly meets and traverses the alle- gations is admissible; the form of the denial, if not evasive, is immaterial ; it may be a direct denial, or an assertion contro- verting what the plaintiff allecres. Hill v. Smith, 27 Cal. 476. The fact that the trav- erse is in an affirmative instead of a nega- tive form is immaterial (Scott v. Wood, 81 Cal. 398; 22 Pac. 871); and it is not essential that the traverse shall be ex- pre.ssed in negative words: an averment, in the answer, controverting what is alleged in the complaint, is equivalent to a denial (Perkins v. Brock, 80 Cal. 320; 22 Pac. 194; Stetson V. Briggs, 114 Cal. 511; 46 Pac. 603); and an affirmative allegation in the com[ilaint may be traversed in the answer by an affirmative allegation inconsistent with it. Siter v. Jewett, 33 Cal. 92; Church- ill V. Baumann, 95 Cal. 541; 3 Pac. 770. The statement that the defendant, for an- swer, says that he denies, etc., is a good denial (Espinosa v. Gregory, 40 Cal. 58); but a denial in the conjunctive is bad. Bartlett Estate Co. v. Fraser, 11 Cal. App. deny these averments as a whole, conjunc- tively stated, is evasive, and an admission of the allegations thus attempted to be denied. Doll v. Good, 38 Cal. 287; Gulf of California Nav. etc. Co. v. State Investment etc. Co., 70 Cal. 586; 12 Pac. 473; Westbay V. Gray, 116 Cal. 660; 48 Pac. 800; Duck- worth V. Watsonville Water etc. Co., 150 Cal. 520; 89 Pac. 338; Blodgett v. Scott, 11 Cal. App. 310; 104 Pac. 842; Kinney v. Maryland Casualty Co., 15 Cal. App. 571, 573; 115 Pac. 456. The defendant is not required to deny the allegations in any more specific language than that in which they are set forth in the complaint. Mc- Donald V. Pacific Debenture Co., 146 Cal. 667; 80 Pac. 1090. An issue is made up when a proposition is affirmed on one side and denied on the other, and it is immate- rial whether the denial precedes or follows the affirmation; where a negative allega- tion is necessary in stating the cause of action, it must, of course, precede an aver- ment of the fact negatived, but its position upon the record does not render it inoper- ative or useless; it constitutes the basis of the issue joined by the subsequent aver- ment, and the latter operates as a traverse, and not as an averment of new matter. Frisch v. Caler, 21 Cal. 71. The answer i's sufficient if it states facts inconsistent with the allegations of the complaint, and which, if true, would defeat the plaintiff's right to recover. Pfister v. Wade, 69 Cal. 133; 10 Pac. 369. Any allegation in the answer, which, if found to be true, necessarily shows that the allegation of the complaint, as to the same matter, is untrue, is a good traverse, and sufficient as a denial. Burris V. People's Ditch Co., 104 Cal. 248; 37 Pac, 922. The defendant should set forth the true nature of his defense in his answer. Walton V. Minturn, 1 Cal. 362. A denial, whether general or special, puts in issue only the allegations of the complaint; the difference between a general and a special denial, in this respect, is only in the extent to which the allegations are traversed. Coles v. Soulsby, 21 Cal. 47. The general denial. The common-law rule has been changed as to what may be proved under the general issue, so that, under our system, a special defense must be specially pleaded; a general denial puts in issue only the material allegations of the complaint (Elder v. Spinks, 53 Cal. 293; Michalitschke 361 DENIAL — THE GENERAL AND THE SPECIFIC. §437 Bros. & Co. V. Wells Fargo & Co., 118 Cal. 683; 50 Pac. 847), and puts in issue only the material allofiations of an unverified complaint. Glazier v. Clift, 10 Cal. 803; Mentone Irrij^ation Co. v. Kcdlands Elec- tric Litjht etc. Co., 155 Cal. 323; 7 Ann. Cas. 1222; 22 L. R. A. (N. S.) 382; 100 Pac. 1082; San Francisco Commercial Agency v. Widemann, 19 Cal. App. 209; 124 Pac. 1056. A denial, whether general or special, puts in issue only the allegations of the com- plaint: the difference between a general and a special denial, in this respect, is only iu the extent to which the allegations are traversed. Coles v. Soulsby, 21 Cal. 47. A general denial of an unverified complaint to quiet title puts iu issue the plaintiff's interest in or ownership of the land (Pen- nie V. Hildreth, 81 Cal. 127; 22 Pac. 398); and a general denial of an unverified com- plaint by an administrator puts in issue the appointment, qualification, etc., of the plaintiff (Pennie v. Hildreth, 81 Cal. 127; 22 Pac. 398) ; and a general denial of value, in such a complaint, puts in issue the value. Paden v. Goldbaum, 4 Cal. Unrep. 767; 37 Pac. 759. A general denial of an unveri- fied complaint, in an action by the assignee of a cause of action, puts in issue the as- signment and the plaintiff's right to sue, and the burden is upon the plaintiff to prove the assignment. Brown v. r^urtis. 12S Cal. 193; 60 Pac. 773. In ejectment, the defendant may, under a general denial, show that the consideration of the deed, upon which the plaintiff bases his title and right of entry, was illegal, and the deed therefore void. Sparrow v. Rhoades, 76 Cal. 208; 9 Am. St. Rep. 197; 18 Pac. 245. The general denial has the same influence as the general issue at common law (Pierev V. Sabin, 10 Cal. 22; 70 Am. Dec. 692; Gavin v. Annan, 2 Cal. 494, and McLarren V. Spalding, 2 Cal. 510), and should not be stricken out as sham or frivolous; under it, payment or failure of consideration may be proved; it admits nothing, under our stat- ute, but the execution of the instrument declared on. Brooks v. Chilton, 6 Cal. 640. A general denial of an unverified complaint on a promissory note does not put in issue the due execution of the note; hence judg- ment cannot be rendered against the de- fendant on the pleadings (Hastings v. Dol- larhide, 18 Cal. 390; Davanay v. Eggcnhoff, 43 Cal. 395); and the denial cannot be stricken out as sham; the defendant has the right to put the plaintiff to proof of his demand, and require that he establish it by evidence admissible for such purpose. Fay V. Cobb, 51 Cal. 313. A want of lc?al capacity to sue is a personal disability, that may or may not be set up by the de- fendant: a general denial does not raise this issue. California Steam Nav. Co. v. Wrieht, 8 Cal. 585; White v. Moses, 11 Cal. 6S; Bank of Shasta v. Bovd, 39 Cal. 604; 34 Pac. 337; Brown v. Curtis, 128 Cal. 193; 60 Pac. 773. The allegation of non-pay- ment of a promicsory note is material: when the complaint is not verified, non- payment is put in issue by a general denial. Ba'nk of Shasta v. Boyd", 99 Cal. 604; 34 Pac. 337. The specific denial. Tf no general denial is made, and specific denials are resorted to, there must be an actual whole, conjunctively stated. And the allegation 437 ANSWER. 368 thus attempted to be denied is, in fact, admitted. Doll V. Good, 38 Cal. 287. The material facts of the complaint, slated conjunctively, except the allegation that by reason of the premises the plaintiff has been injured and sustained damage in the sum of ten thousand dollars, are under- taken to be answered by the defendants denying them as a whole, as conjunctively stated, as will be seen by placing any one aggregated statement of facts in the complaint in juxtaposition with the answer thereto. This mode of answering is in violation of the principles of common-law pleading, and not less so of the statute, which provides that the defendant's answer to a verified complaint shall contain a specific denial to each allegation of the complaint controverted, or a de- nial thereof according to the defendants' infor- mation and belief. Those interested, and who have any doubt on the subject, will find the fol- lowing authorities worthy of careful examination: Blankman v. Vallejo, 15 Cal. 638; Kuhland v. Sedgwick, 17 Cal. 123; Caulfield v. Sanders, 17 Cal. 569; Brown v. Scott, 25 Cal. 195; Landers V. Bolton, 26 Cal. 417; Busonius v. Coffee, 14 Cal. 91; Hensley v. Tartar, 14 Cal. 508; Hop- kins V. Everett, 6 How. Pr. 159; Salinger v. Lusk, 7 How. Pr. 430; Davison v. Powell, 16 How. Pr. 467: Shearman v. New York Central Mills, 1 Abb. Pr. 187; Baker v. Bailey, 16 Barb. 54; Fish v. Redington. 31 Cal. 194. 25. Insufficient denial is admission of truth of averments iu complaint. On failure of proper denials, plaintiff is entitled to judgment upon the pleadings. The rules of pleading, under our system, are intended to prevent evasion and to require a denial of every specific averment in • a sworn complaint, in substance and in spirit, and merely a denial of its literal truth, and whenever the defendant fails to make such denial he admits the averment. Doll v. Good, 38 Cal. 290, citing, as authority. Smith v. Richmond, 15 Cal. 501; Blankman v. Vallejo, 15 Cal. 638; Castro V. Wetmore. 16 Cal. 380; Hissins v. Wor- tell, 18 Cal. 333; Woodworth v. Knowlton, 22 Cal. 169; Landers v. Bolton, 26 Cal. 417; Mor- rill V. Morrill. 26 Cal. 292; Camden v. Mullen, 29 Cal. 564; Blood v. Light, 31 Cal. 115. 26. Failure to deny, ■when not an admission. If a complaint alleges the value of all the prop- erty destroyed, for which the action is brought, in gross — for some items of which no recovery can be had — an answer containing no denial of the averment of value, does not thereby admit the value of the property for which a recovery may be had. Nunan v. San Francisco, 38 Cal. 689. 27. Denial of averment in the exact words of the complaint. Denial of immaterial issues. A denial of a debt as to time, amount, and work, in the precise words of the complaint, raises only an immaterial issue upon these particulars, in- stead of meeting the substantial matter averred, and is therefore bad. Caulfield v. Sanders, 17 Cal. 569. The code system is intended to pre- vent evasion, and to require a denial of each specific averment in a verified complaint in sub- stance and in spirit, and not merely a denial of its literal truth; and whenever the defendant fails to make such denial, h? admits the allega- tions. Smith V. Richmond, 15 Cal. 501; see Camden v. Mullen, 29 Cal. 564; Leffingwell v. Griffing, 31 Cal. 231 : Landers v. Bolton, 26 Cal. 416. A denial merely of what is non-essential in the allegations of a complaint, is an admission of all that is es.sential to a recovery. Leffingwell V. Griffing. 31 Cal. 231. 28. Denial of indebtedness in exact amount is bad. ^Vhere the complaint, verified, avers that defendant is indebted to plaintiff for goods, wares, and merchandise, sold and delivered, in the sum of eight hundred and twenty-eight dollars and sixteen cents, an answer denying that defendant is indebted in the sum of eight hundred and twenty-eight dollars, sixteen cents, as is set out in the complaint, is bad. Higgins v. Wortell, 18 Cal. 330; see Woodworth v. Knowlton, 22 Cal. 164; Towdy v. Ellis, 22 Cal. 650; Verzan v. Mc- Gregor, 23 Cal. 339. 29. Other insufficient and bad denials. Where an allegation in a verified complaint embraces several distinct propositions stated conjunctively, a denial iu the answer, of the entire averments following the exact words of the complaint, raises no issues, and is bad. Woodworth v. Knowlton, 22 Cal. 164; Reed v. Calderwood, 32 Cal. 109. When several averments are not joined by the conjunction "and," a denial of the allegations, conjunctively, will not amount to a denial of the allegations; each proposition should be sepa- rately denied. Fitch v. Bunch, 30 Cal. 208; More V. Delvalle, 28 Cal. 170; Fish v. Redington, 31 Cal. 185. An answer to a material allegation of a verified complaint which denies the same upon information and belief, is insufficient. Nel- son v. Murray, 23 Cal. 338. 30. Other insufficient denials. An answer to a verified complaint which denies "generally and specifically each and every material allegation in the complaint, the same as if such an allegation were herein recapitulated," and also denying each allegation in the same form, with certain quali- fications and exceptions, does not raise an issue upon any fact staled in the complaint. Hensley V. Tartar, 14 Cal. 508. An allegation, in a veri- fied complaint, that "defendants wrongfully and unlawfully entered upon and dispossessed" plain- tiff, is not sufliciently denied by a denial that "defendants wrongfully and unlawfully entered and dispossessed plaintiff",'' because such denial admits entry and ouster. Busenius v. Coffee, 14 Cal. 91. 31. Consistency of answer in all its parts. Where the admissions in an answer are opposed to its general denials, the denials will be dis-^ regarded, and judgment given upon the former, where the complaint is verified, and the answer consists of such admissions and denials. Fre- mont V. Seals, 18 Cal. 433; see also Klink v. Cohen, 13 Cal. 623; Uridias v. Morrell, 25 Cal. 35. Where an amended answer is inconsistent with the original answer, the two cannot stand together. Kuhland v. Sedgwick, 17 Cal. 123. A verified answer must not deny in one sentence what it admits lo be true in the next. Hensley v. Tartar, 14 Cal. 508. 32. Sufficiency of denial, how to be determined. In order to determine whether the denials of an answer are evasive, each separate denial of each separate averment must be taken by itself If the answer to a particular averment is a denial of it, and there is no admission in the answer inconsistent v/ith the denial, an issue is fairly made. Racouillat v. Rene, 32 Cal. 450. 33. Misjoinder and non-joinder of parties plain- tiff and defendant. Objection to misjoinder of parties defendant should be taken by demurrer or answer. An answer will not be treated as a plea in abatement for a misjoinder of parties defendant, after the testimony has disclosed a proper cause of action against them. Warner v. Wilson, 4 Cal. 33 3. Where two are joined as plaintiff in an action for the recovery of posses- sion of land, a denial in the answer, that the plaintiffs were in possession of the land, does not raise the issue of a misjoinder of either of the plaintiffs. Gillam v. Sigman. 29 Cal. r,^7. For non-joinder of parties plaintiff, see Whitney v. Stark. 8 Cal. 516; 68 Am. Dec. 360. And for answer setting up misjoinder and non-joinder of parlies. Fulton v. Cox, 40 Cal. 105. 34. An answer is not evidence. Goodwin v. Hammond, 13 Cal. 168; 73 Am. Dec. 574. Nor does it require two witnesses to controvert a verified answer. Bostic v. Love, 16 Cal. 69; Blankman v. Vallejo, 15 Cal. 638. 35. What proof may be made under specific and general denials. See Jackson v. Feather River etc. Water Co., 14 Cal. 18; Hawkins v. Borland, 14 Cal. 413. It was held, that defend- ant may prove an eviction on a claim for rent in arrear, under the plea nil debit, or general denial. McLarren v. Spalding, 2 Cal. 510. But this was overruled in Piercy v. Sabin, 10 Cal. 30; 70 Am. Dec. 692; and consequently an evic- tion must be set up in the answer. 369 ALLEGATIONS ADSflTTED WHEN — NEW MATTER. §437 36. Allegations of complaint admitted, ■when not denied. t'lilrss the answor denies Ihe alio gatioiis of the coniplainf , they are admitted, and constitute conclusive evidence of the extent of the damages claimed. Patterson v. Ely. 19 Oal. 28. The failure to deny a material allefration is an admission of the facts contained in such averment, and such admission is conclusive. Burke v. Table Mountain Water Co., 12 Cal. 403. Under the code, a specific denial of one or more allegations is held to be an admission of all others well pleaded. De Ro v. Cordes, 4 Cal. 117. An admission without fraud to rights of client, by an attorney of record, of the correctness of an amount due, for which .iudgment is taken, de- stroys the effect of a denial in an answer. Taylor V. Randall, .5 Cal. 79. An answer is not proof for defendant, but an admission in the answer of a fact stated in the complaint is conclusive evi- dence against him. Blankman v. Vallejo, 15 Cal. f).38. If the complaint contains two causes of action, and the answer takes issue on the allega- tions of but one, plaintiff is entitled to judgment on the other. T^eflingwell v. Griffing, 31 Cal. 231. 37. Allegations not denied are deemed to be admitted. The intent of the statute is fully car- ried out by excluding parol testimony to contra- dict a deed; but where parties admit the real facts of the transaction in their pleadings, these admissions are to be taken as modifications of the instrument. Lee v. Evans, 8 Cal. 424. No evidence is required as to facts not denied. Pat- terson v. Ely. 19 Cal. 28. 38. What must be specifically stated in an- swer. Special defenses. Statute of limitations, see § 458. post, also note 47, post. Release. Coles V. Soulsby, 21 Cal. 50; Turner v. Caruthers, 17 Cal. 431. Statute of frauds. Osborne v. Endi- cott, 6 Cal. 149: 65 Am. Dee. 498. Subse- quently acquired title by defendant in ejectment. Moss V. Shear, 30 Cal. 468. Transfer of title by plaintiff. Id. Tax titles. Russell v. Mann, 22 Cal. 132. Tax titles accruing after action commenced. McMinn v. O'Connor, 27 Cal. 246; see "Supplemental Answer." Composition with creditors. Smith v. Owens, 21 Cal. 11. Counter- claim should be pleaded. Hicks v. Green, 9 Cal. 74. Disclaimers. Noe v. Card, 14 Cal. 576; De Uprey v. De Uprey, 27 Cal. 331; 87 Am. Dec. 81. Equitable titles, defenses, and estoppels. Clarke v. Huber, 25 Cal. 597; Carpentier v. Oak- land, 30 Cal. 439: Flandreau v. Dovrney, 23 Cal. 354; Blum v. Robertson, 24 Cal. 146; Downer V. Smith, 24 Cal. 124. Estoppels. Clarke v. Huber, 25 Cal. 593. An estoppel by deed or matter of record should be pleaded as such, where there is an upporiunity to plead it. Flandreau V. Downey, 23 Cal. 354. Eviction of the ten- ant must be set up when. Piercy v. Sabin, 10 Cal. 30; 70 Am. Dec. 692. For fixture of min- ing claims. Wiseman v. McNulty, 25 Cal. 230; Dutch Flat Water Co. v. Tklooney, 12 Cal. 534. Former recovery. Vance v. Olinger, 27 Cal. 358; Marshall v. Shafter, 32 Cal. 176. Fraud, etc. People V. Board of Supervisors, 27 Cal. 656. Grant of an easement of servitude. American Company v. Bradford, 27 Cal. 368. Misjoinder of parties plaintiff, owing to matters which have occurred pending the action, must be taken by supplemental answer, or it is waived. Calder- wood v. Pyser, 31 Cal. 333. New matter must be specially pleaded. Coles v. Soulsby, 21 Cal. 47. New matter occurring after issue joined must be set up by supplemental answer. Jessup V. King, 4 Cal. 331. Payment. Coles v. Soulsbv, 21 Cal. 47; Frisch v. Caler. 21 Cal. 71. In Frisch v. Caler, 21 Cal. 71, it is held that a plea of payment is not new matter, and in Fairchild V. Am.sbaugh, 22 Cal. 575, the court say, it fol- lows, that it is not necessary to set it up as a special defense in the answer; but this is op- posed to the opinion of Field, C. J., in Green V. Palmer, 15 Cal. 417; 76 Am. Dec. 492; and Burnett, J., in Piercy v. Sabin, 10 Cal. 27; 70 Am. Dec. 692; and to the numerous authorities in New York and elsewhere; see Voorhees' New York Code, 8th ed., pp. 274, 284b; Vansant- 1 Fair. — 24 voord's Pleading, p. 454; see Piercy ▼. Sabin, 10 Cal. 30; 70 .Xm. Dec. 602. Cnworkmanlike man- ner of doing work. Kendall v. Vallcj'i, 1 Cal. 371. \\'ant of capacitv in a plaintiff to sue. ralifornia Steam Nav. Co. v. Wright, 8 Cal. ."iSS. That items in an account are overcharged. Terry V. Sickles, 13 Cal. 427. Abandonment of land need not be pleaded. Willson v. Cleaveland. 30 Cal. 192. Abandonment was affirmatively averred by the defendant in St. John v. Kidd, 26 Cal. 266. Abandonment. Tooms v. Randall, 3 Cal. 438; Hentsch v. Porter. 10 Cal. 555. Another action pending was pleaded in the case of O'Con- nor V. Blake. 29 Cal. 314; Calaveras County v. Brnckway. 30 Cal. 325. Accord and satisfaction. Coles v. Soulsby, 21 Cal. 47; Piercy v. Sabin, 10 Cal. 30; 70 Am. Dec. 692. 39. Pleading discharge in Insolvency. Rahm V. Minis, •!() Cal. 41 1 . 40. Pleading equitable titles. It is not the province of the jury, but of the court, to pass upon the e(|uitable title set up in the answer, and it must be sufficiently pleaded to authorize the court to grant a decree which will estop the further prosecution of the action. Downer v. Smith. 24 Cal. 114; Arguello v. Edinger, 10 Cal. 150; Lestrade v. Barth, 19 Cal. 660; Patterson V. Ely, 19 Cal. 2r!; Estrada v. Murphy, 19 Cal. 248; Meador v. Parsons, 19 Cal. 294; Blum v. Robertson, 24 Cal. 127; Davis v. Davis, 26 Cal. 38; 85 Am. Dee. 157; Clarke v. Huber, 25 Cal. 593. 41. New matter set up in answer. Where the pleadings are verified, every matter of defense not directly responsive in the allegations of that complaint must be alleged in the answer. Terry V. Sickles. 13 Cal. 427. New matter must be specially pleaded; and. in ejectment, a transfer of title by the plaintiff, or a title acquired by defendant pending the action, must be pleaded by supplemental answer, or it cannot be given ia evidence. Moss v. Shear, 30 Cal. 4(iS. 42. Introduction of new matter in avoidance. When defendant seeks to introduce into the case a defense not disclosed by the pleadings; when something relied on by defendant which is not put in issue by the plaintiff, this is new matter. Bridges v. Paige 13 Cal. 640; see also Coles v. Suulsby, 21 Cal. 47. In Piercy v. Sabin, 10 Cal. 27, 70 Am. Dec. 692, the court say: "Under §437, there are only two classes of defense allowed. The first con- sists of a simple denial; and the second, of the allegation of new affirmative matter. And as the code has abolished all distinctions in the forms of action, and requires only a simple state- ment of the facts constituting the cause of action or defense, these two classes of defense must be the same in all cases. "The plaintiff is required to state in his com- plaint the facts that constitute his cause of ac- tion; and it seems to have been the intention of the code to adopt the true and just rule, that the defendant must either deny the facts as alleged or confess and avoid them. It is certain that where new matter exists it must be stated in the answer. The answer 'shall contain a statement of any new matter constituting a defense." The language of this section is very clear, that this new matter, whatever it may be, must be set up in the answer. The question then ari.ses. What is 'new matter,' in the contemplation of the code itself? New matter is th.Tt which, under the rules of evidence, the defendant must affirmatively es- tablish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter. A defense that concedes that the plain- tiff once had a good cause of action, but insists that it no loneer exists, involves new matter. 1 Chitty's Pleading, p. 472: Gilbert v. Cram, 12 How. Pr. 455; Radde v. Ruckgaber, 3 Duer, 685; Brazil v. Ishani. 12 X. Y. 17. "If facts which occur subsequently to the date of the original transaction do not consti- tute new matter, what facts do constitute itf And if any subsequent matter can properly be called 'new matter,' must not all subsequent mat- §437 ANSWER, 370 ters be equally entitled to the same designation I Tlie languape of the code is explicit, that the 'answer shall contain a statement of any new matter constituting a defense.' The code maltes no distinction between ditferent classes of new matter. AH new matter of defense must be stated in the answer. "This feature of the code is one of the most beneficial and obvious improvements upon the former system. This classification of defenses is simple, logical, and just. Each party is dis- tinctly apprised of all the allegations to be proven by the other; and each is, therefore, prepared to meet the proofs of his adversary. The plaintiff is compelled to set out every fact necessary to constitute his cause of action, and the defendant every new matter of defense. This is required by the true principles of pleading. 1 Chitty's Pleading, p. 526. "Two of the leading ends contemplated by the code are simplicity and economy. Adams v. Hackett, 7 Cal. 187. As contributing to the at- tainment of these ends, it was the intention of the code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved by them, respectively, but to narrow the proofs upon the trial. The in- tention is clearly shown, not only by the spirit and general scope of the system, but by par- ticular provisions. The different provisions of the act, when construed together and legitimately ap- plied, lead to this conclusion. "If we take the theory to be true, that, under our system, the defendant, by simply denying the allegations of the complaint, may give in evi- dence all matters which could be formerly given in evidence under the general issue, it is diffi- cult to perceive what purpose the code has ac- complished by the provisions of § 437. The classification of defenses therein found would be substantially useless. In vain has that sec- tion provided that the answer shall contain a statement of any new matter constituting a de- fense, when nearly all such matter could be given in evidence under a simple denial in the answer. Under the former system, almost every matter in discharge of the action could be given in evidence under the general issue. "But this theory would seem to be liable to the most substantial objections, and to lead, in practice, to bad results. "The plaintiff states the facts that constitute his cause of action. He is not required to state conclusions of law. The liability of the defend- ant is the result or conclusion which the law draws from the facts alleged. If a complaint' should only allege that the defendant was in- debted to the plaintiff in a named sum, which the defendant refused to pay, the complaint would not state facts sufficient to constitute a cause of action. The complaint must allege the facts that constitute the indebtedness. When, therefore, the facts constituting the cause of action are stated, a simple denial of these facts can properly put in issue only the constituent facts, and not the mere conclusion from the facts. The plaintiff, therefore, comes prepared to prove the facts, as alleged. But if the de- fendant, under his simple denial, is permitted to prove almost everything in discharge of the ac- tion, the plaintiti cannot know how to avoid surprise upon the trial, unless he comes pre- pared to meet every possible ground that may be taken by the defendant. The result is a great and unnecessary increase of costs in many cases. The plaintiff is not to blame, because he could not know what he had to meet. The defendant is not to blame, because he only wished to deny the allegations of the complaint, and not to in- troduce any new matter. But the rule would not allow him to do so, in a form that would apprise the plaintiff clearly of all he intended, and no more. The rule made his answer wider than he intended. He simply denied the allega- tions of the complaint. He could do no less, if he defended at all. "If it be said that, under § 441, the defend- ant may plead as many defenses as he may have, and in this way compel the plaintiff to come prepared to meet' as many grounds as he would have had to meet under the general issue, we re- ply, that the argument is not sound. Under the view we have taken, the defendant may protect himself against unnecessary costs by only put- ting in issue the allegations of the complaint, or by conceding them to be true and setting up new matter, thus narrowing the proofs upon the trial. So under our view, the plaintiff is protected against sham defenses. " which may be stricken out on motion. Post, § 453. A sham answer is one good in form, but false in fact, and not pleaded in good faith. It sets up new matter which is false. Nichols v. Jones, 6 How. Pr. 355; Ostrom v. Bi.xby, 9 How. Pr. 57, 215, 217; Voorhies' Code, p. 177, note B. "But if it be true that under a simple denial in the answer the defendant may give in evidence any defense formerly admissible under the gen- eral issue, the provisions of § 453, allowing sham answers to be stricken out, would possess but very little practical utility. A simple denial could not be treated as a sham answer; and yet all the purposes of vexation could be as well accom- plished by it as by separate defenses. So the provisions of § 441, requiring defenses to be sepa- rately stated, would be almost useless. As most of these new matters could be given in evidence under the neg^itive answer, they need not be stated at all. "Anciently, in England, the general issue was seldom pleaded, except when the defendant meant wholly to deny the allegations of the declaration. Matters in discharge of the action were specially pleaded. But by acts of Parliament special mat- ter was allowed to be given in evidence, under the general issue, in certain cases, affecting pub- lic otificers. The rule was gradually extended to other cases. It was the opinion of Sir William Blackstone that this relaxation of strictness, an- ciently observed, did not produce the confusion anticipated. This supposition prevailed for a long time, but subsequent experience led to a change of opinion. The result of this change was the adoption of the Reg. Gen. Hil. T., 4 W., p. 4, 'which puts an end to the misapplication and abuse of the general issue, and compels a defendant, in terms, to deny particular parts of the declaration, and to plead specially every matter of defense, not merelv consisting of denial of the allegations of the declaration.' 1 Chitty's Pleading, pp. 473, 512. "These regulations restored the ancient rule, and placed the science of pleading upon its true principle. The framers of the New York code, from which ours is mainly taken, would seem to have intended to accomplish the same result. It has been there held, and seems now to be the well-settled rule, that new matter must be set forth in the answer. Payment, an award, or a former recovery, must be pleaded. Calkins v. Packer, 21 Barb. 275; Brazil v. Isham, 12 N. Y. 17. Such defenses admit the contract as alleged, but avoid it by matters ex post facto. "The decisions of this court have not been uni- form upon this question. The classification of defenses, under § 45 of the Practice Act of 1850, was the same as that under J 437 of our present code. It was held by this court, in several cases, that all new matter must be set up in the answer. Ladd V. Stevenson, 1 Cal. 18; Grogan v. Ruckle, 1 Cal. 195; Walton v. Minturn, 1 Cal. 363; Kendall V. Vallejo, 1 Cal. 372. But in the ease of Gavin V. Annan, 2 Cal. 494, it was held that a general denial has the same influence as the general issue at common law, and, under it, accord and satis- faction may bo shown. To the same effect was the decision in the case of McLarren v. Spalding, 2 Cal. 510." The general denial only puts in issue averments made in the complaint. New matter must be spe- cially pleaded, and must be affirmatively estab- lished. Glazer v. Clift, 10 Cal. 303. Where a negative allegation is made, preceding an aver- ment by the opposite party of the fact negatived, it constitutes the basis of the issue joined by the subsequent averment, and the matter traverses the negative allegation, and is not new matter. Frisch V. Caler, 21 Cal. 71. As to what is and is not new matter, see also Goddard v. Fulton, 21 Cal. 371 INSURANCE — EXEMPTION — WHAT MUST BE SET UP. §437a 430; Woodworth v. Knowlton, 22 Cal. 1G4; Mul- ford V. Estudillo, 23 Cal. 94; Ayres v. Beiisley, 32 Cal. 620; Cole.s v. Soulsby, 21 Cal. 47. M'here the averments of an answer, although stated in an affirmative form, are, in effect, only a denial of the allegations of the oomnlaint, they do not constitute new matter, within the meaning of our Practice Act. If the an.swer, either di- rectly or bv way of necessary implication, ad- mits the trnth of all the essential averments of the coninlniiif which show a cause of action, but sets forth facts from which it results that, not- ■withstiuulinK the truth of the allegations of the complaint, no cause of .action existed in the plain- tiff at the time the action was brought, those facts are new matter; but if the facts averred in the answer only show that some essential allegation of the complaint is untrue, then they are not new matter, but only a traverse. And, generally, as to new matter, see Goddard v. Fulton, 21 Cal. 430. 43. Matter in abatement. Pleas in abatement are not favored, and the party must prove the plea as pleaded. Thompson v. Lyon, 14 Cal. 39. Failure to join. Whitney v. Stark, 8 Cal. 514; 68 Am. Dec. 360. Pendency of prior action. Primm V. Gray, 10 Cal. 522; Thompson v. Lyon, 14 Cal. 39; Calaveras County v. Erockway, 30 Cal. 325; People V. De la Guerra, 24 Cal. 73; O'Connor v. Blake, 29 Cal. 312. Misjoinder or misnomer of parties defendant. Warner \. \\ilson, 4 Cal. 310; Dunn V. Tozer, 10 Cal. 170; Rowe v. Bacigalluppi, 21 Cal. 633. Change of venue. Tooms v. Ran- dall, 3 Cal. 438. Non-presentation of claim to administrator. Hentsch v. Porter, 10 Cal. 555. Wherever the defense is that the plaintiff cannot maintain any action at any time, it must be pleaded in bar: but matter which only defeats the present proceeding, and does not show that the plaintiff is forever concluded, must generally be pleaded in abatement. Hentsch v. Porter, 10 Cal. 555. Want of authority in the attorney of rec- ord to commence an action, cannot be pleaded in abatement. Turner v. Caruthers. 17 Cal. 431. 44. Answer to enable court to render cross-judg- ment for defendant for value of personal property. In a suit to recover personal property, in order to enable the defendant to obtain the value of the property on judgment of dismissal against the plaintiff for default, the answer must contain some averment as to the change of possession from de- fendant to plaintiff. The judgment of return or value is in the nature of a cross-judgment, and must be based upon proper averments. Where plaintiff takes the property, the defendant must claim its return in his answer, to enable the court to give the judgment in the alternative form. Gould V. Scannell, 13 Cal, 430. 45. Objection to pleading, when deemed waived. Improper pleading, how cured. Where an equi- table estoppel in pais is not properly pleaded, but on the trial evidence is introduced without ob- jection, in the same manner as if it had been properly pleaded, and a verdict is rendered upon the evidence without objection, the objection to the pleading will be deemed waived, and the case will be considered as though the estoppel had been properly pleaded. Davis v. Davis, 26 Cal. 38; 85 Am. Dec. 157. The introduction of evidence without objectign in support of it will not cure the omission of speciallv pleading a defense. Smith V. Owens, 21 Cal. 11; McComb v. Reed, 28 Cal. 281 : 87 Am. Dec. 1 15. 46. Answers in justification. See Thornburgh V. Hand. 7 Cal. 5.J4 : Walker v. Woods, 15 Cal. 66; Glazer v. Clift, 10 Cal. 303; Coles v. Soulsby, 21 Cal. 47, and cases cited; Killey v. Scannell, 12 Cal. 73; Lenlz v. Victor, 17 Cal. 271; Knox V. Marshall. 19 Cal. 617; Pico v. Colimas, 32 Cal. 578; Towdy v. Ellis, 22 Cal. 650; Richardson v. Smith, 29 Cal. 529; McComb v. Reed, 28 Cal. 281 : 87 Am. Dee. 115. 47. Pleading statute of limitation. See §§ 312- 363, ante, and notes, and particularly § 458, post. 48. Answer in ejectment suit. For general mat- ters, see Hawkins v. Reichert, 28 Cal. 534; Schenk v. Evoy, 24 Cal. 113; Blankman v. Vallejo, 15 Cal. 638; Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692; Powell v. Oullahan, 14 Cal. 114; Williams v. Young, 17 Cal. 403; La Rue v. Oppen- heimer, 20 Cal. .517; Gregory v. Haynes, 13 Cal. 591; Bodlev v. Ferguson, 30 Cal. 511; Smith v. Doe, 15 Cal. 100; Marshall v. Shafter, 32 Cal. 176; Stephens v. Mansfield, 11 Cal. 363; Patter- son V. Ely, 19 Cal. 28; McGarvey v. Little, 15 Cal. 31; Guy v. Hanly, 21 Cal. 397; Bell v. Brown, 22 Cal. 671; Ladd v. Stevenson, 1 Cal. 18; Moss v. Shear, 25 Cal. 44; 85 Am. Dec. 94; Burke v. Table Mountain Water Co., 12 Cal. 403; Willson V. Cleaveland. 30 Cal. 192; Busenius v. Coffee, 14 Cal. 91; Lestrade v. Barth. 19 Cal. 660; Estrada v. Murphy, 19 Cal. 248; Meador v. Parsons, 19 Cal. 294; Davis v. Davis, 26 Cal. 38; 85 Am. Dec. 157; Downer v. Smith, 24 Cal. 124; Blum V. Robertson, 24 Cal. 146 ; see, however, § 379, ante, which materially changes the former law as to ejectment cases. 49. Stating fraud sufficiently in answer. Gushee V. Leavitt, 5 Cal. IRQ; 63 Am. Dec. llfi; Ward V. Packard, 18 Cal. 391; Lamott v. Butler. 13 Cal. 32; Kinney v. Osborne, 14 Cal. 112; King V. Davis, 34 Cal. 100; People v. Board of Super- visors, 27 Cal. 656. 50. Actions for divorce. Conant v. Conant, 10 Cal. 249; 70 Am. Dec. 717; Washburn v. Wa.sh- burn, 9 Cal. 475; Fox v. Fox, 25 Cal. 587; Ben- nett V. Bennett, 28 Cal. 599. 51. Verification of inconsistent answer, when perjury. Pleadings will be construed most strongly against the pleader. When a fact which is di- rectly averred in one part of a verified pleading is in another part directly denied, whether it be in the statement of several causes of action in a complaint or of several defenses in an answer, the party verifying it is guilty of perjury. Bell V. Brown, 22 Cal. 671. § 437a. Actions to recover insurance. What defendant claiming exemp- tion must set up. In an action to recover upon a contract of insurance wherein the defendant claims exemption from liability upon the ground that, although the proximate cause of the loss was a peril insured against, the loss was remotely caused by or would not have occurred but for a peril excepted in the contract of insurance, the defendant shall in his answer set forth and specify the peril which was the proximate cause of the loss, in what manner the peril excepted contributed to the loss or itself caused the peril insured against, and if he claim that the peril excepted caused the peril insured against, he shall in his answer set forth and specify upon what premises or at wdiat place the peril excepted caused the peril insured against. Legislation § 437a. p. 836. Added by Stats. 1907, 5 438 ANSWER. 372 §438. When counterclaim may be set up. The counterclaim mentioned in the last section [section four hiuulred and thirty-seven] must be one exist- ing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the follow- ing causes of action : 1. A cause of action arising out of the transaction set forth in the com- plaint 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 existing at the commencement of the action. Dismissing action, where counterclaim. Post, or setoff are averred. St. Louis Nat. Bank V. Gay, 101 Cal. 2S6; 35 Pac. 876. A coun- terclaim must in some way qualify or de- feat the judgment to which the plaintiff is otherwise entitled; in a foreclosure suit, a defendant who is personally liable for the debt, or whose land is bound by the lien,, may properly introduce an offset; but where his personal liability is not in ques- tion, and where he disclaims all interest in the mortgaged premises, he cannot counter- claim against the plaintiff on a note, bond, or covenant. Meyer v. Quiggle, 140 Cal. 495; 74 Pac. 40. To require a finding upon any affirmative matter urged to a counter- claim, it must constitute a defense thereto,, and be supi^orted by some evidence. L. Scatena & Co. v. Van Loben Sels, 19 Cal. App. 423; 126 Pac. 187. A demand that does not conform to the provisions of this, section is not available as a counterclaim. Harron v. Wilson, 4 Cal. App. 488; 88 Pac. 512. Cross-demands against the estate of a deceased jierson, are ineffectual as coun- terclaims, if they are barred by the statute- of limitations, and were not presented to- the ])ersonal representative of the deceased.. C. Moore v. Gould, 151 Cal. 723; 91 Pac. 616. How pleaded. A counterclaim must be denoininated as such in the answer, in or- der to be effective (Carpenter v. Hewel, 67 Cal. 5S9; 8 Pac. 314; Brannan v. Paty, 58 Cal. 330) and where affirmative matter is designated a counterclaim, the defendant, cannot, after the trial, treat the same as a cross-complaint, and take judgment on that theory. McAbee v. Randall, 41 Cal. 136. The form in which the plaintiff sets out his cause of action is not conclusive upon the- right of the defendant to set forth his counterclaim in his answer; but if other facts in the same transaction are so con- nected with those set forth in the com- plaint as to defeat their legal effect, the defendant may set them up, regardless of the form which the plaintiff may have chosen for jiresenting his own side of the ease. Storv & Isliam Commercial Co. v. Story, lOO' Cal. 30; 34 Pac. 671. New- matter constituting a counterclaim is deemed controverted by the plaintiff, and the burden of proof is on the defendant. Herold v. Smith, 34 Cal. 122. Must exist in favor of defendant and against plaintiff. The test is very simple § 581. Omission to set up counterclaim prevents future actiou thereon. Post, § 439. Compensated, cross-demands deemed. Post. § 440. Legislation § 438. Enacted March 11, 1872; based on Practice Act, § 47 (Ne-vv York Code, § 150), as amended by Stats. 1860, p. 299, -which read: "The county [counterjclaim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action and arising out of one of the following causes of action: 1. A cause of action arising out of the trans- action set forth in the complaint or answer, as the foundation of the plaintiff's claim, or defend- ant's defense, or connected with the subject of the action. 2. In an action arising upon con- tract; any other cause of action arising also upon contract and existing at the commencement of the action." Counterclaim, defined. This section de- fines what a counterclaim is, as well as when it may be jdeaded; it practically says that a counterclaim is defined to be what the section says may be pleaded as such. Ainsworth v. Bank of California, 119 Cal. 470; 63 Am. St. Ptep. 135; 39 L. E. A. 686; 51 Pac. 952. To constitute a counterclaim, the facts must be such as would entitle the defendant to relief against the plaintiff in a separate action; the subject-matter of the answer may be a good defense to the action, but it is not a counterclaim, un- less the defendant can recover judgment thereon in an independent action. Belleau v. Thompson, 33 Cal. 495. The term "coun- terclaim" is broader in its scope and mean- ing than "set-off," and includes not only demands which are the subject of set-off and recouj)ment, but also equitable de- mands; a set-off, prior to the code, could, in most of the states, only be interposed where the demand was certain, or capable of being niale in such actions. Knight v. Black, 19 Cal. App. 518; 126 Pae. 512. In an action to foreclose a mortgage, an averment of the answer, that after the e.xecution thereof, the defendant sold the plain ti.ff an interest in certain property as jiart of the consideration for the cancellation of the mortgage, is a valid counterclaim. Rich- mond V. Lattin, 64 Cal. 273; 30 Pac. 818. In an action by a lessee against the lessor for the foreclosure of a mortgage, rent due from the lessee to the lessor need not be set up as a counterclaim, and the failure so to set it up is not a waiver, there being no connection between the note and th-^ mortgage and the lease of the promises, which were separate and distinct contracts. Brosnan v. Kramer, 135 Cal. 36; 66 Pac. 979. In an action founded on tort, the facts may be of such character that a counterclaim or cross-complaint wdll lie. on the theory that the tort is a transaction (Glide v. Kayser, 142 Cal. 419; 76 Pac. 50; and see Meyer v. Quiggle, 140 Cal. 495; 74 Pac. 40) ; but a counterclaim or cross-com- plaint, founded on damages to real prop- erty, cannot be properly pleaded to a complaint for the recovery of personal property. Glide v. Kayser, 142 Cal. 419; 76 Pac. 50. In an action to quiet title, de- mand for damages for breach of a contract is not a proper subject of counterclaim, where it does not arise out of any trans- action set forth in the complaint as a §438 ANSWER. 374 foundation of the plaintiff's claim, nor have anv connection with the land. Meyer v. Quiggle, 140 Cal. 495; 74 Pac. 40. In an action to quiet title brought by one in possession, the answer of the defendant, stating facts essential to a complaint in ejectment, and demanding possession of the premises, does not constitute a counter- claim. Moyle V. Porter, 51 Cal. 639. In an action to foreclose a street assessment, the defendant cannot set up a counterclaim for damages to the land in the jirosecution of the work. Engebretsen v. Gay, 158 Cal. 27; 109 Pac. 879. In an action for services in making an abstract of title, the claim of the defendant, that, as the ab- stract was not made in time, he thereby suffered damages through the loss of a con- tingent real estate investment, cannot be set up as a counterclaim. Pendleton v. Cline, 85 Cal. 142; 24 Pac. 659. In an ac- tion for the balance due on a note secured by pledge, after sale thereof, a counter- claim cannot be set up for damages occa- sioned by negligence in the use of the pledge, where the defendant consented to such use. Damon v. Waldteufel, 99 Cal. 234; 33 Pac. 9C3. In an action on a prom- issory note, the defendant may allege that ue is an indorser for accommodation only, and that no demand for payment was made on the maker, or notice of dishonor, etc., given him as an indorser; but he cannot set up the same as a counterclaim, praying it to be adjudged that he is in no wise in- debted or liable to the plaintiff on the note. Belleau v. Thompson, 33 Cal. 495. In a proceeding by an heir to procure the pay- ment of an allowed claim, the claim of the executor that the claimant be charged with the value of the use and occupation of property of the estate in his possession, is properly a counterclaim, and must be set up by pleading. Estate of Couts, 100 Cal. 400; 34 Pac. 865. In an action to recover money claimed to be due, the value of the use and occupation of premises held by the plaintiff under a third party, by title ad- verse to the defendant, cannot be set up as a counterclaim. Quinn v. Smith, 49 Cal. 163. In an action for the restitution of money received by virtue of a judgment of foreclosure, reversed as to some prop- erty included in the mortgage, but finally affirmed as to all the other property, a de- ficiency judgment is a proper subject of counterclaim. Dowdell v. Carpy, 137 Cal. 333; 70 Pac. 167. In an action upon a money demand, founded upon a contract, the defendant cannot file a counterclaim or cross-complaint setting up a mere naked trespass on his property after the com- mencement of the action. Wausrenheim v. Graham, 39 Cal. 169. Where collaterals are lost throujih the negligence of the pledgee, he is answerable for the loss, and the pledgor may set up a counterclaim for the loss, in an action uj)on the prinfipnl debt. Hawlev P.ros. Fl;ir Cal. App. 423; 126 Pac. 187. Action arising upon contract. Where the claim of the plaintiff arises on con- tract, the defendant may counterclaim any cause arising upon a contract that existed at the commencement of the action. Stod- dard v. Treadwell, 26 Cal. 294. While a counterclaim sounding in tort cannot be set up as a defense to an action arising upon contract, yet a promise to pay damages for an injury resulting from tort is a matter arising upon contract, and, as such, may be pleaded as a counterclaim to an action founded ujion contract. Poly v. Williams, 101 Cal. 648; 36 Pac. 102. An action for the breach of a contract to deliver mer- chandise is an action arising upon contract, and a counterclaim may be set up by the- defendant therein for goods sold and de- livered. Davis v. Hurgren, 125 Cal. 4S; 57 Pac. 684. In an action upon an original contract, a substituted contract, supersed- ing the original, cannot be pleaded as a. counterclaim, under the first subdivision of this section; but, the facts showing a cause of action in favor of the defendant, and it being a different contract from that described in the complaint, it may be prop- erly pleaded under the second subdivis- ion. Griswold v. Pieratt, 110 Cal. 259, 42 Pac. 820. Where money advanced to a mortgagee by a mortgagor, with interest, thereon, is to be applied in payment of a. mortgage if a survey of the mortgaged, property is confirmed, but is to be returned with interest if not confirmed, there can be no counterclaim for further interest, in a proceeding to foreclose the mortgage,, after the payments and the interest thereon amount to the sum of the mortgage debt,, and the survey is confirmed. Coleman v.. Commins, 77 Cal. 548; 20 Pac. 77. In an action by a vendor to foreclose agreements for the sale of land, the vendee is entitled to set up, as a counterclaim, an indebted- ness due him from the vendor, under a: contract, entered into subsequently to the- breach of the agreement sued on, whereby the vendor agreed to purchase his equitable- interest in the land, and to enforce a ven- dor's lien therefor. Eogers Development Co. v. Southern California Real Estate Inv. Co., 159 Cal. 735; 35 L. R. A. (N. S.) 543; 115 Pac. 934. In an action founded on contract, the defendant may set up, by way of counterclaim, a cause of action, in his favor, against the plaintiff, for a bal- ance due on an open mutual and current account. Lindsay v. Stewart, 72 Cal. 540;^ 14 Pac. 516. In an action by an adminis- trator to recover a mortgage debt due the- estate, promissory notes, assigned before 375 COUNTERCLAIJI — AMOUNT— STATUTE OF LIMITATIONS. §438 maturity, may be set up as a counterclaim by the assignee, although uot presented for allowance, if action could be maintained on them at the commencement of the fore- closure suit; but if the notes were assigned after maturity, the assignee takes them subject to all existing erpiitics between the maker and the payee, and they cannot be the subject of a counter(daim, but must he set up as an equitable defense. Lyon v. Petty, U5 Cal. :V22; 4 Pac. 103. In an ac- tion by a guarantor of rent, to have it de- creed what amount was due and un])aid, the lessor may set up, by way of counter- claim, the contract of guaranty and the amount due thereunder, and seek judgment therefor against the plaintiff (McDougald V. llulet, 132 Cal. 151; 61 Pac. 278); and a prayer for general relief is a sufficient foundation for any relief appropriate to the facts stated. Rogers Development Co. v. Southern California etc. Inv. Co., 159 Cal. 735; 115 Pac. 934. In an action for moneys deposited with the plaintiff, a note secured by a mortgage cannot be set up as a coun- terclaim or set-off. McKean v. German- American Sav. Bank, 118 Cal. 334; 50 Pac. 65fi. Amount of counterclaim. Under the first subdivision, the amount of the counter- claim is of no jurisdictional moment. Gris- wold V. Pierat't, 110 Cal. 259; 42 Pac. 820. In an action on a contract, another cause of action on a contract, in favor of the de- fendant, may be set up as a counterclaim, although it does not amount to three hun- dred dollars. Freeman v. Seitz, 126 Cal. 291; 58 Pac. 690. A counterclaim or set-off of less than three hundred dollars, in an action in the superior court, pleaded as defensive matter, can be properly enter- tained, and is as much a matter of defense as w^ould be the plea of the payment of a like sum. Freeman v. Seitz, 126 Cal. 291; 58 Pac. 690. An action in a justice's court may be restrained, where the defendant has a counterclaim for more than three hundred dollars, arising out of the transac- tion upon which the claim is founded, and neither party can secure adequate relief without having the subject of the counter- claim passed upon. Gregorv v. Diggs, 113 Cal. 196; 45 Pac. 261. Complaint suspends limitations on coun- terclaim. The filing of the original com- plaint operates to suspend the statute of limitations as to a demand which is the subject of a counterclaim (McDougald v. Huiet, 132 Cal. 154; 64 Pac. 278), if it was not then barred, though, if standing alone, the statute would run against it before the answer is filed. Perkins v. West Coast Lumber Co., 120 Cal. 27; 52 Pac. 118. Scope and office of counterclaim under the code. See note 89 Am. Dee. 4S2. CODE COMMISSIONERS' NOTE. 1. Counter- claim, evidence of. Loss of profits as a counter- claim. Unliquidated damages as counterclaim. Counterclaim, when not set up in answer, evi- dence thereof, etc. In Stoddard v. Treadwell, 26 Cal. 303-309, Justice Shaffer, in a very elaborate oiiini.in upon these subjects says fthe code com- missioners (luote si.x pages thori'from]. 2. When set-off is allowed, and what set-off may consist oi. A decree, reiulered in an action on a l)on(l. and to foreclose a mortgaKe as secu- rity therefor, v.liieh, after reciting the amount found due on the bond, directed that the mort- frased premises be sold, and out of the proceeds, the costs and the amount found due on the bond and accruing interest be paid, and the sheriff pay such surplus into court, but that if the proceeds were insufficient to pay the debt, interest, and costs, the sheriff should report tlie amount of such defirieney or balance, and the plaintiff have exe- eiili'ner of the judgment and holds beneficial control of it. Jones v. Chalfant, 55 Cal. 505. The as- signee of a judgment is deemed to have notice of all the matters disclosed by the record in the action in which the judgment was rendered, and therefore takes judg- ment subject to the right of set-off dis- closed in the record. Hobbs v. Duff, 23 Cal. 596. The purchaser and assignee of a judg- ment, even for a valuable consideration and without notice, takes subject to a right of set-off existing at the time of the as- signment. McCabe v. Grev, 20 Cal. 509; Porter v. Liscom, 22 Cal. 430; 83 Am. Dec. 76; St. Louis Nat. Bank v. Gay, 101 Cal. 286; 35 Pac. 876; Haskins v. Jordan, 123 Cal.' 157; 55 Pac. 786. The judgment against an assignor of the plaintiff or party beneficially interested cannot be pleaded as a set-off or counterclaim. Duff' v. Hobbs, 19 Cal. 646. Where the relation of debtor and creditor exists between the parties, and one becomes vested with a right of action against the other, such right is assignable, and enforceable by the assignee, subject to any defense or counter- claim against the assignor. Watkius v. Glas, 5 Cal. App. 68; 89 Pac. 840. CODE COMMISSIONERS' NOTE. Vinton v. Crowe, 4 Cal. 309. The last clause is added to ihe section at the instance of Justice V.'allace. Although a party may set up an equitable defense to an action at law, his remedy is not confined to that proceeding. He may let the judgment go at law, and file his bill in equity for relief. Lor- raine V. Long, 6 Cal. 453. Defendant may set up all his defenses. That tlio defendant may set forth as many defenses as he thinks proper, is a right fully recognized, as is also the fact that pleading one defense cannot be held a waiver of another in the same answer, even though inconsistent. Bell v. Brown, 22 Cal. 671; Snipsic Co. v. Smith, 7 Cal. App. 150; 93 Pac. 1035; Harding v. Hard- ing, 148 Cal. 397; 83 Pac. 434; and see McDonald v. Southern California Ry. Co., 379 MAY SET UP ALL DEFENSES — INCONSISTENT DEFENSES. §441 101 Cal. 206; 35 Pac. 643, 646. The de- fendant may rely on several distinct de- fenses: he is not concluded by one plea, so long as he has others which go to the whole action (Youngs v. Bell, 4 Cal. 201) j nor is he required to elect between de- fenses. Harding V. Harding, 148 Cal. 397; 83 Pac. 434, If the plaintiff objects to in- consistent defenses, he must move to strike out one or the other, or apply for an order compelling the defendant to elect as to which one he will rely upon. Buhne v. Corbett, 43 Cal. 264; Banta v. Siller, 121 Cal. 414; 53 Pac. 935. Inconsistent de- fenses and hypothetical pleadings are per- mitted. Eppinger v. Kendrick, 114 Cal. 620; 46 Pac. 613. The defendant may plead any and all of his defenses, and they may be inconsistent with one another, and the effect of a denial in one defense is not aided by setting up affirmative matter in another. Miles v. Woodward, 115 Cal. 308; 46 Pac. 1076; Shepherd-Teague Co. v. Her- mann, 12 Cal. App. 394; 107 Pac. 622. He may set up negative as well as affirma- tive defenses; and affirmative matter, sepa- rately pleaded, does not operate as a waiver or withdrawal of the denial in another por- tion of the answer. Billings v. Drew, 52 Cal. 565. He may deny that he controlled the instrument causing an accident, and, as a separate defense, may deny that the accident occurred through his negligence, and allege contributory negligence of the plaintiff. Banta v. Siller, 121 Cal. 414; 53 Pac. 935. If a plea or defense, separately pleaded, contain several matters, these should not be repugnant or inconsistent in themselves; but the plea or defense, re- garded as an entirety, if otherwise suffi- cient in form or substance, is not to be defeated or disregarded, merely because it is inconsistent with some other defense. Buhne v. Corbett, 43 Cal. 264. The object of sworn pleadings is to elicit the truth; therefore the answer should be consistent, and not deny in one sentence what is ad- mitted to be true in the next. Hensley v. Tartar, 14 Cal. 508. A statement in one defense cannot be used as evidence upon another issue; to allow such would be to deprive the defendant of the benefit of his denials. McDonald v. Southern California Ry. Co., 101 Cal. 206; 35 Pac. 643, 646. In an action for a statutory penalty for a failure to make and post reports of a mining corporation, the defendant may deny the violation of the statute, and, by separate defense, aver matters in extenua- tion, excuse, and defense; and the effect of a denial in one defense is not waived by the setting up of affirmative matter in another; and, in such case, it is incumbent upon the plaintiff to prove the defendant's violation of the statute. Miles v. Wood- ward, 115 Cal. 308; 46 Pac. 1076. Incon- sistency between defenses will not justify striking out other defenses. Baker v. Southern California Ey. Co., 106 Cal. 257; 46 Am. St. Kep. 237; 39 Pac. 610; McDon- ald V. Southern California Ey. Co., 101 Cal. 206; 35 Pac. 643, 646. A denial of the title of the plaintiff, and a separate defense of the statute of limitations, are not inconsistent defenses. Willson v. Cleaveland, 30 Cal. 192. Bight to plead inconsistent defenses. See note 48 L. R. A. 177. CODE COMMISSIONERS' NOTE. Inconsistent defenses. In Bell v. Brown, 22 Cal. 079, the court say: "The question of inconsistent defenses and hypothetical pleadings under the code has been adjudicated by the courts of other states in numerous cases, and the right of a defendant to set forth as many defenses as he thinks proper is fully recognized, and also that pleading one defense cannot be held a waiver of another in the same answer, even though inconsistent. In Sweet V. Tuttle, 14 N. Y. 465, Mayhew v. Robinson, 10 How. Pr. 162, and Bridge v. Payson, 5 Sandf. 210, a general denial and plea of nonjoinder of defendants were united and held good. So in Gardner v. Clark, 21 N. Y. 399, where a plea of performance and a former action pending were joined. So in Doran v. Dinsmore, 20 Hov;'. Pr. 503, where a general denial was coupled with a plea of payment. So in Mott v. Burnett, 2 K. D. Smith, 52, it w^as held that the defendant might deny making the note sued on, allege a set-off, and that one of the makers of the note had been discharged by the holder. In an action to re- cover personal property it was held the defend- ant might answer by a general denial, and set up a justification of the taking. Hackley v. Ogmun, 10 How. Pr. 44. In slander, that lie may deny the charge and also justify. Orrasbv v. Douglas, 5 Duer, 665; Butler v. Wentworth, 17 Barb. C49; Butler v. Wentworth, 9 How. Pr. 282. So, also, that pleas which were not inconsistent un- der the former practice are good as answers under the code. Lansingh v. Parker, 9 How. Pr. 288. Held, too, that a defendant should never be re- quired to elect between a denial of a material allegation of the complaint and new matter con- stituting a defense (Hollenbeck v. Clow, 9 How. Pr. 289) ; and that it was not necessary that the several defenses in an answer should be consist- ent with each other. Stiles v. Comstock, 9 How. Pr. 48. Also, that denials of allegations in the complaint may be coupled with a defense of the statute of limitations. Ostrom v. Bi.xby, 9 How. Pr. 57. Held, too, that a defense might be hypo- thetically predicated upon a fact alleged in the complaint, as an answer after denying that the plaintiff was the owner of the note sued on, averred that if the plaintifl is the owner, he took it with notice of a failure of the consideration. Brown v. Ryckman, 12 How. Pr. 313. Or if ths defendants, by their agents, ever issued the cer- tificate of deposit sued on, the same has been paid. Doran v. Dinsmore, 20 How. Pr. 503. Also held that an implied admission in one of the de- fenses set up in an answer will not conclude or estop the defendant from proving another defense set up in the same answer, as each defense in an answer stands by itself, and an admission in one is not available against the others. Swift v. Kingsley, 24 Barb. 541. In the case of Ketcham V. Zereiga, 1 E. D. Smith, 553, this question was very fully examined, and the right of a defend- ant to file inconsistent defenses and hypothetical pleadings, under proper circumstances, was fully maintained. In the case of Youngs v. Bell, 4 Cal. 201, the right of a defendant to set up several distinct defenses, and to rely upon all of them in order to put the plaintiff to his proof, was sus- tained, and it was held that he was not concluded by one plea, so long as he had others which went to the whole action. See also Kidd v. Laird, 15 Cal. 182; 76 Am. Dec. 472. We are aware that there are several decisions, both in our own and other courts, which have laid down contrary views, but the weight of principle and authority is in favor of the rule, that, under proper circum- stances, a defendant' may set up several defenses in his answer, inconsistent with each other, though §442 ANSWER. 380 miffht be inconsistent with each other, were re- o,uired each to be consistent with itself. Bell v. Brown, 22 Cal 679: see also Klink v. Cobpn. 13 Cal. 623; Uridias v. Morrell, 25 Cal. 31; Willson V. Cleaveland, 30 Cal. 192; Racouillat v. Rene, 32 Cal. 450." 2. Generally. See Mudd v. Thompson, 34 Cal. 46: Carpentier v. Small, 35 Cal. 347; Racouillat V. Rene, 32 Cal. 450. each defense must be consistent with itself. The cases decided bv the court of appeals in the state of New York, and reported in Sweet v. Tuttle 14 N Y 465, and Gardner v. Clark, 21 N. Y. 399, seem to have settled the rule in that state. The Tiew we t.nke harmonizes the new code with the well-established principle of the old system of practice. Works on pleading are full of prece- dents and forms recognizing fully the right of a defendant to file several pleas, which, though they § 442. Cross-complaint. Whenever the defendant seeks affirmative relief a<'ainst' any party, relating to or depending upon the contract or trans- action upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. If any of the parties affected by the cross-complaint have not appeared in the ac- tion, a summons upon the cross-complaint must be issued and served upon them in the same manner as upon the commencement of an original action. App. 518; 126 Pac. 512), and a cross-com- plaint is not authorized in a justice's court: it is confined to actions in the superior Original complaint. Ante, §§ 426, 427. Dismissing action, where cross-complaint. Post, i 581. Legislation § 442. 1. Added by Code Amdts. 1873-74. p. 301 (changes noted infra). 2. Amendment by Stats. 1901, p. 134; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1907, p. 706. 4. Amended by Stats. 1909, p. 966, adding the final sentence. 5. Amended by Stats. 1915. p. 298, eliding "to the action," after "party" (added in 1907). Nature and elements. A cross-complaint must state facts sufficient to entitle the pleader to affirmative relief: it cannot be aided by averments in any of the other pleadings, and must fall, unless sustained by its own allegations; like the complaint, it should contain all the requisite facts. Coulthurst V. Coulthurst, 58 Cal. 239; Kreichbaum v. Melton, 49 Cal. 50. A cross-complaint must state a separate and independent cause of action upon a con- tract, under the second subdivision of § 438, ante, which is subject to the same grounds of demurrer as an original com- plaint. Ilarron v. Wilson, 4 Cal. App. 488; 88 Pac. 512. It must stand or fall on its own allegations of facts. Collins v. Bart- lett, 44 Cal. 371. To constitute a counter- claim or cross-complaint, the relief sought must, to some extent, defeat, overcome, or affect the plaintiff's cause of action, or lessen, modify, or interfere with the relief to which the plaintiff is entitled. Yorba v. Ward, 109 Cal. 107; 38 Pac. 48; 41 Pac. 793. A cross-complaint is unnecessary where the relief demanded can be had upon the denials and averments of the an- swer; but it is proper where full relief cannot be given the defendant upon the answer, and it is sought to have the whole controversy between the parties finally ad- judicated and settle/! in one action. Mar- tin V. Molora, 4 Cal. App. 298; 87 Pac. 1104. Neither a counterclaim nor a cross- complaint is permissible in actions of un- lawful detainer (Knight v. Black, 19 Cal. court. Purcell v. Eichardson, 164 Cal. 150; 128 Pac. 31. Permission of the court. The action of the court in overruling the demurrer of new parties brought in by way of cross- complaint may be taken as evidence of its consent to a cross-complaint. Syvertson v. Butler, 3 Cal. App. 345; 85 Pac. 164. Relief must relate to or depend upon the transaction upon which the action is brought. Any person made a defendant is authorized to set up by cross-complaint his right to affirmative relief, depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates. Lowe v. Su- perior Court, 165 Cal. 708; 134 Pac. 190. The cause of action set up in the cross- complaint must relate to or depend upon the contract or transaction upon which the plaintiff's action is brought, or af- fect the property to which it relates; and in an action to foreclose a material-man's lien, a cross-complaint which alleges that the defendant, to avoid litigation, paid to the plaintiff, upon a date prior to that upon which the complaint alleges the con- tract for the materials was made, a sum of money in excess of what was then due him, and which asks judgment for such excess, is not authorized bv this section. Clark V. Taylor, 91 Cal. 552; 27 Pac. 860. In an action for the foreclosure of an equitable mortgage securing a promissory note, the defendant cannot set up, by way of cross-complaint, a cause of action against the plaintiff for the improper levy of an attachment of the property of the defendant, in a prior action instituted by the plaintiff on the note. Clark v. Kellev, 163 Cal. 207; 124 Pac. 846. In an action to enjoin a diversion of water, a cross- complaint, claiming rights in the water 381 CROSS-COMPLAINT AFFECT SAJIE PROPERTY SERVICE, ETC, H42 diverted, but which nowhere shows that the defendant owns or holds by rif^ht any lands riparian to the stream, ancl merely -avers that he owns several lots, and has possession and control of others, without averrinj^ that he possesses or controls them by right, and states that the stream flows through its natural channel, over and across the land of the defendant; without stating that it flows across the lots owned by him, does not state a cause of action or ground of cross-complaint. Silver Creek etc. Water Co. v. Hayes, 113 Cal. 142; 45 Pac. 191. In an action to set aside cer- tain proceedings as to laud, to which plain- tiff asserts title, the defendant, being a purchaser in ])ossession, may maintain a cross-complaint to quiet his title as against a void and fraudulent deed to the plain- tiff. Stephenson v. Deuel, 12o Cal. 656; 58 Pac. 258. In an action to foreclose a street assessment, a cross-complaint cannot be interposed for injuries to the land in the 2)roseeution of the work. Engebretsen v. Gay, 158 Cal. 27; 109 Pac. 879. This sec- tion authorizes a cross-complaint for the specific performance of an agreement to convey the premises to defendant, in an action to recover buildings removed from the plaintiff's land. Hall v. Cole, 4 Cal. Unrep. 92S: .38 Pac. 894. Must affect property to which the action relates. This section authorizes a cross- complaint whenever the defendant seeks afBrmative relief affecting the property to which the action relates, and seemingly permits, in an action regarding real es- tate, the assertion of a title indejiondent of and paramount to that of the plaintiff. Taylor v. McLain, 64 Cal. 513; 2 Pac. 399; Martin v. Molera, 4 Cal. App. 298; 87 Pac. 1104. In an action for damages for in- juries to personal property, damages for a trespass upon real estate is not a proper subject for cross-comjilaint, unless con- nection between the causes of action is shown. Demartin v. Albert, 68 Cal. 277; 9 Pac. 157. A cross-complaint must af- fect the same property as that affected by the original complaint; a claim for an en- tirely distinct piece of property or ease- ment, not in any way connected with that described in the original complaint, cannot be set up by cross-complaint. Bulwer Con- sol. Mining Co. v. Standard Consol. Min- ing Co., 83 Cal. 589; 23 Pac. 1102. Where the original action relates to and affects two parcels of property, the defendant is entitled to interpose, by cross-complaint, any defense he may have as to either or both, and to ask any affirmative relief necessary and proper. Eureka v. Gates, 120 Cal. 54; 52 Pac. 125. The requisite of connection of the defendant's cause of ac- tion with the subject of the plaintiff's action is not defined or restricted by this section; nor is it provided that the af- firmative relief sought shall affect only the property to which the plaintiff's action re- lates: only some connection is required. Stockton Sav. & L. Soc. v. Harrold, 127 Cal. 612; 60 Pac. 165. In ejectment, a cross-complaint as to other land is im- ])roi)er. McFarland v. Matthai, 7 Cal. A J)]). 599; 95 Pac. 179. Must be served on parties affected. Ser- vice of the cross-coniiijaint should Ije made on the plaintiff; but where no right of his was prejudiced by the omission to serve him, the judgment will not be reversed be- cause of it, especially where all matters of substance charged in the com{)laint were pleaded affirmatively in the answer, which was served on him, so that he met, in the prosecution of his own action, every issue which would have been tendered to him had he been served also with the cross-complaint. Mackenzie v. Hodgkin, 126 Cal. 591; 77 Am. St. Rep. 209; 59 Pac. 36. It may be served on the plaintiff's attorney (Ritter v. Eraash, 11 Cal. App. 258; 104 Pac. 592), and upon either the adverse party or his attorney. Wood v. .Johnston, 8 Cal. App.. 258; 96 Pac. 508. A cross-complaint affecting the interest of defaulting defendants must be served upon them. Hibernia Sav. & L. Soc. v. Fella, 54 Cal. 598. A party defendant both to the complaint and cross-com.plaint, in a fore- closure suit, is entitled to service upon him of the cross-complaint, which prays that the defendants, and all persons claiming under them, be barred and foreclosed of all their rights, claim, and equity of re- demption, although the cross-com))]aint does not allege that such defendant claims an interest in the premises. Houghton v. Tibbets, 126 Cal. 57; 58 Pac. 318. New parties cannot be brought in. Since the amendment of 1907 to this section, new parties cannot be brought into the case by v/av of cross-complaint. Merchants' Trust Co. V. Bentel, 10 Cal. App. 75; 101 Pac. 31; Clark v. Kelley, 163 Cal. 207; 124 Pac. 846. The defendant in an action to quiet title may, by cross-complaint, bring in whatever parties are necessary to a de- termination of the controversy; and where the defendant claims under an execution sale of the interest of a beneficiary in pos- session, for whose benefit the plaintiff holds the legal title, such beneficiary is a proper and necessary party, and may be brought in by the cross-complaint. Winter V. McMillan," 87 Cal. 256; 22 Am. St. Rep. 243; 25 Pac. 407. Pleading to cross-complaint. The pro- vision of this section, that, where a cross- complaint has been served by the defend- ant claiming affirmative relief, the party served "may demur or answer thereto as to the original complaint," is an exception to the rule that new matter in avoidance or constituting a defense or counterclaim must be deemed controverted. Moore v. Copp, 119 Cal. 429; 51 Pac. 630. The de- fense of an action pending does not apply to cross-suits. Helfrich v. Romer, 16 Cal. App. 433; 118 Pac. 458. Matters of af- firmative defense and counterclaim are ;§ 443, 444 DEMURRER TO ANSWER. 382 deemed denied, and this rule is operative, although the defendant erroneously styles the pleading a cross-complaint. Pfister v. Wade, 69 Cal. 133; 10 Pac. 369. Nature and extent of cross-lDills. See note 83- Am. Dee. 251. Use of cross-complaint to bring in new parties. See note 26 L. R. A. (N. S.) 127. CHAPTER V. DEMUKRER TO ANSWER. § 443. When plaintiff may demur to answer. § 444. Grounds of demurrer. Demurrer to complaint. Ante, § 430. Service of demurrer. Post, § 465. Time to demur, extending. Post. § 1054. Time to answer, when demurrer overruled, begins to run from service of notice of decision. Post, § 476. § 443. When plaintiff may demur to answer. The plaintiff may within ten da3'S after the service of the answer demur thereto, or to one or more of the several defenses or counterclaims set up therein. Answer and demurrer applicable to origi- nal pleading. This section is applicable only to the original pleadings iu a cause, and not to pleadings which are amended or presented at the trial, or during its progress: where a complaint is amended at the trial, the court has the same right to exercise its discretion in determining the time within which an answer, or a de- murrer thereto,' shall be filed, as it has in determining whether it will allow the amended pleading; and its discretion ia not abused by refusing time within which the plaintiff shall demur to an amended pleading, where no ground of demurrer ap- pears. Schultz V. McLean, 109 Cal. 437; 42 Pac. 557. Disposition of demurrer. Where the rec- ord does not show that a demurrer to the answer was disposed of, a judgment in favor of the plaintiff is irregular. Huse V. Moore, 20 Cal. 115. The trial of the case while a demurrer to the answer is still pending amounts only to an irregu- larity not justifying the granting of a new- trial. Calderwood v. Tevis, 23 Cal. 335. Legislation § 443. 1. Enacted March 11, 1872; based on Practice Act, § 50 (New York Code, § 152), as amended bv Stats. 1865-66, p. 702, which read: "When tne answer contains matter in avoidance, or a counterclaim, the plaintiff may, within the number of days in which the defendant is by the summons required to answer, to be computed from the time of the service of a copy of such answer, demur to the same for insufficiency, stating therein the grounds of such demurrer; and when the answer contains a cross- complaint, the parties against whom relief is therein demanded may demur or answer thereto within the like period. Sham and irrelevant answers and defenses, and so much of any plead- ing as may be irrelevant, redundant, or imma- terial, may be stricken out, upon motion, upon such terms as the court in its discretion may impose." When enacted in 1872, § 443 read: "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." 2. Amended by Code Amdts. 1873-74, p. 301, adding the clause, at the end of the section, "or to one or more of the several defenses or coun- terclaims set up in the answer." 3. Amendment by Stats. 1901, p. 134; un- constitutional. See note ante. § 5. 4. Amended by Stats. 1907, p. 706; the code commissioner saying, "The time within which the plaintiff may demur to the answer is more defi- nitely and clearly fixed by the amendment.'' § 444. Grounds of demurrer. The demurrer may be taken upon oue or more of the following grounds : 1. That several causes of counterclaim have been improperly joined, or not separately stated ; 2. That the answer does not state facts sufficient to constitute a defense or counterclaim ; 3. That the answer is ambiguous ; 4. That the answer is unintelligible ; or 5. That the answer is uncertain. Whether a demurrer to a separate defense may be carried back to the complaint where the de- fendant has also pleaded a general denial. See note 26 L. R. A. (X. S.) 117. Grounds of demurrer. Ante, § 430. Legislation g 444. 1. Enacted March 11, 1872. 2. .\m.ndment by Stats. 1901, p. 134; un- constitutional. Sec note ante. § 5. 3. Amended by Stats. 1907, p. 707, (1) add- ing the words "or not separately stated," at the end of subd. 1; and (2) rearranging subd. 3, and making subds. 4 and 5. the original subd. 3 readinir. "That the answer is ambiguous, unin- telligible, or uncertain." Grounds of demurrer. A demurrer may- be made to a counterclaim, on the ground that it does not state facts sufficient to sustain it. Bliss v. Sueath, lia Cal. 526; 51 Pac. S48. In an action to recover per- sonal property, an answer which denies that the plaintiff is the owner of the prop- erty is not demurrable upon the ground 383 DEMURRER — GROUNDS OF — MUST BE DEFINITE — WAIVER. §444 that it does not state facts sufficient to constitute a defense. Carman v. Ross, G4 Cal. 249; 29 Pac 510. An objection to an answer, on the ground that separate de- fenses are not separately stated, cannot be taken by demurrer: such defect can be reached only by motion to strike out, or by sonie other appropriate proceedinji;. llagolv V. Haossib]e to determine there- from to what portion of the answer it re- lates. Carman v. Eoss, 64 Cal. 249, 29 Pac. 510. The demurrer must be directed to the whole of the pleading, or to a par- ticular and sejiarate count, or statement of a cause of action or defense: a demurrer to all of the defendant's answer after a certain line and page is insufficient (Locke V. Peters, 65 Cal. 161; 3 Pac. 657); and a demurrer to the whole answer is improper, though good as against a counterclaim, where the answer also contained a denial constituting a valid defense to the action. Eich v. Greeley, 112 Cal. 171; 44 Pac. 483. Waiver of demurrer. Filing an answer to a cross-complaint waives a demurrer previously filed thereto. Booth v. Chap- man, 59 Cal. 149. The failure of the court to pass upon a demurrer to an answer is not an error of which the defendant can complain, where it does not attend the trial, nor object to a trial at the time, and the plaintiff insists upon trying the issues of fact: Fincher v. Malcomson, 96 Cal. 38; 30 Pac. 835; and see McCarthy v. Yale, 39 Cal. 5S5; Pilcox V. Lang, 78 Cal. 118; 20 Pac. 297. Waiver by failure to demur. Inconsis- tent defenses are waived, if not objected to by demurrer or motion to strike out. Uri- dias v. Morrell, 25 Cal. 31; Klink v. Cohen, 13 Cal. 023. An objection to an answer for uncertainty in denial is waived by a failure to demur therefor. Harney v. Mc- Leran, 6G Cal. 34; 4 Pac. 884. An objec- tion that matter alleged does not consti- tute a counterclaim, and is not recognized by law as a defense, is not waived by a failure to demur, but may V)e taken at any time. MacDougall v. Maguire, 35 Cal. 274; 95 Am. Dec. 98. A counterclaim barred by the statute of limitations must be spe- cially pleaded to by demurrer on this ground, or it is waived, and a judgment in favor of the counterclaim will be af- firmed on apiieal, if the record does not show that the statute was relied upon as a defense. Bliss v. Sneath, 119 Cal. 526; 51 Pac. 848. CODE COMMISSIONERS' NOTE. When in- fonsistpnt defenses are .set up, the defect must be reached by motion to strike out one of the de- fenses. If a motion to strike out will not reach or cure the defect, then the objection may be reached by demurrer; and if no oVjjection be taken to the answer on this ground, defendant, on the trial, may rely on any of his defenses, as under the old system. Klink v. Cohen, 1.3 Cal. 623; affirmed in Uridias v. Morrell, 25 Cal. 37; see also Arnold v. Dimon, 4 Sandf. C80, and cases cited in Van Santvoord's Pleading, p. 287. But a demurrer cannot be stricken out as a sham or irrelevant defense; it can only be disposed of in the usual way. Larco v. Casaneuava, 30 Cal. 560. Where the plaintiff claims that all the denials are bad, if the answer contains no new matter, he may test the sufficiency of the denials by a mo- tion for .iuderaent upon the pleadings, or by mo- tion to strike out the answer on the ground that it is sham and irrelevant. If some of the denials are good, and the others bad, he may move to strike out the latter. Answers consisting of denials, which do not e-xplicitly traverse the mate- rial allegations of the complaint, we hold so far sham and irrelevant within the meaning of the statute. Gay v. Winter. 34 Cal. 161; see also People V. McCumber, 18 N. Y. 315; 72 Am. Dec. 515. Though certain defenses, by way of set-off, are pleaded in the answer in a very informal and inartificial manner, yet, if the facts showing that they constitute valid claims against the plaintiff are sufficiently stated, the defense ought not to be struck out. Wallace v. Bear Kiver etc. Min- ing Co., 18 Cal. 461. An answer without a veri- fication to a complaint, duly verified, may be stricken out on motion, and judgment asked as u;jon a default. Drum v. Whiting, 9 Cal. 422. The motion in this case to strike out the answers, because denying on information and belief, was properly overruled. Comerford v. Dupuy, 17 Cal. 308. A verified answer, which in any part con- tains a distinct denial of a fact material to plain- tiff's recovery, cannot, no matter how defective it may be. be treated as a nullity, so as to entitle plaintiff to judgment on the pleadings. Ghirardelli v. McDerraott, 22 Cal. 539. When jjlaintiff moves an affidavit to strike out a defense as "sham," the defendant can defeat the motion by making aftidavit that his defense is made in good faith. Gostorfs v. Taaffe, 18 Cal. 385; Wed- derspoon v. Rogers. 32 Cal. 569, and cases there cited. Inability of counsel to obtain defendant's verification in time cannot avail in resisting a motion to strike out. and for judgment after the answer is filed. Drum v. Whiting, 9 Cal. 422. If an answer is filed, raising an issue, and a trial §446 VERIFICATION OF PLEADINGS. 384 is had. and witnesses are sworn and examined, and the court takes the case into consideration, it cannot then strike out the answer of the de- fendant and enter his default. Abbott v. Doug- lass, 2S Cal. 295. For what have been held to be sham and irrelevant defenses, see McDonald v. Bear River etc. Mining Co., 15 Cal. 145; Weimer V. Lowery. 11 Cal. 104; Bates v. Sierra Nevada etc. Mining Co., 18 Cal. 171. Defendants were sued on a note. The complaint was not verified. but set out the note. Defendants pleaded pay- ment. Plaintiff, on affidavits that the plea was false and p'caded in bad faith, moved to strike out the answer, and for judgment, which was granted. The ruling of the court was right. "Sham" answers and defenses are such as are good in form, but false in fact, and pleaded in bad faith; and that such answers, when consist- ing of affirmative defenses, should be stricken out. Gostorfs V. Taafife, 18 Cal. 385. CHAPTER VI. VERIFICATION OF PLEADINGS. § 44 6. Verification of pleadings. § 447. Copy of written instrument contained in complaint admitted, unless answer is verified. I 448. When defense is founded on written in- strument set out in answer, its execu- tion admitted, unless denied by plain- tiff under oath. § 449. Exceptions to rules prescribed by two preceding sections. § 446. Verification of pleadings. Every pleading^ must be subscribed by the party or liis 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 own knowledge, except as to the matters wdiich are herein 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 w^here the attorney has his office, 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 verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof. When the state, or any county thereof, or any officer of the state, or of any county thereof, in his official capacity is plaintiff, the complaint need not be verified. Attorneys' power to bind client. Ante, § 283. Verifying accusation for disbarment of attor- ney. S.-e ante, § 291. Petition by creditor to appraise homestead must be verified. See Civ. Code, § 1246. Legislation § 446. 1. Enacted March 11, 1872; based on Practice Act, § 51 (New York Code, § 156), as amended bv Stats. 1862, p. 562, Practice Act, § 52 (New York Code, § 157) ; as amended by Stats. 1862, p. 562, and Practice Act, § 55 (New York Code, § 157). These sections read: "§51. Every pleading shall be subscribed by the party, or his attorney, and when the com- plaint is verified by affidavit, the answer shall be verified also, except as provided in the next •action." "§ 52. The verification of the answer, required in the last section, may be omitted when an admission of the truth of the complaint might subject the party to prosecution for felony or misdemeanor." "§ 55. In all cases of the veri- fication of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, 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 shall be by the affidavit of the party, unless he be absent from the county whtre the attorney re- sides, or from some cause unable to verify it, or the facts are within the knowledge of his attor- ney, or other person verifying the same. When the pleading is verified by the attorney, or any other person except the party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; or when the state, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts, except that in actions prosecuted by the attorney- general in behalf of the state the pleadings need not, in any case, be verified." 3. Amendment by Stats. 1901, p. 134; un- constitutional. See note ante, § 5. 3. Amended by Stats. 190T, p. 707; the code commissioner saying, "The words 'where the attorney had his office' have been substituted for the words 'where the attorney resides,' and the last sentence has been added." Necessity for and object of verification. The requirement as to the verification of the pleadings must be complied with, to give validity to acts pursuant thereto. Wall v. Mines, l.SO Cal. 27; 62 Pac. 38(3. The object of the verification is to insure good faith in the averments of the party. Patterson v. Ely, 19 Cal. 28; Sileox v. Lang, 78 Cal. 118; 20 Pac. 297. The_ proper practice, where the answer is unverified, ia 385 VERIFICATION — SUFFICIENCY, ETC. — BY CORPORATION. §446 to interjiose a motiou to strike from the files, for ju(li>inent ou the pleailinjjs, or for judgment for want of answer, llearst v. ilart, 128 Cal. 327; 60 Pae. 84(5; and see Drum V. Whitino:, 1) Cal. -!22; McCullouiih V. Clark, 41 Cal. 298. Upon the filing of an amended comjilaint, the averments of the orijjinal cannot be used to disprove those of the amended complaint, although by the verification of the original the plaintiff makes the statements his own. Johnson v. Powers, ti5 Cal. 179; o P:u', 625. Pleadings which must be verified. .\ petition for habeas corpus must be verified. Ex parte Walpole, 84 Cal. .384; 24 Pac. 308. Exhibits consisting of pleaiiings and pro- ceedings in an action brought in the name of the United States need no further veri- fication than the certificate of the clerk of the circuit court of the United States. Ely v. Frisbie, 17 Cal. 2-50. This section applies only to the verification of plead- ings: a claim of lien is not a pleading. Parke & Lacv Co. v. Inter Nos Oil etc. Co., 147 Cal. 490;' 82 Pac. 51. When answer must be verified. In an action on a promissory note, where the complaint is verified, a sworn answer is necessary. Brooks v. Chilton, 6 Cal. 640. An answer without a verification may be stricken out on motion, v/here the com- plaint is duly verified. Drum v. Whiting, 9 Cal. 422. But where the answer is veri- fied, and denies a single fact material to a recovery by the plaintiff, it cannot be treated as a nullity. Ghirardelli v. McDer- mott, 22 Cal. 539. In condemnation pro- ceedings brought in the name of a county, the answer need not be verified. Monterey County V. Gushing, 83 Cal. 507; 23 Pac. 700; San Francisco v. Itsell, 80 Cal. 57; 22 Pac. 74. Correcting the answer, in regard to paging and numbering pleadings, to con- form with a rule of the court, does not modify or change its denials or averments so as to require verification, and, when the answer is refiled by leave of court, it can- not be stricken out. Buell v. Beckwith, 59 Cal. 480. Waiver of verification. A waiver of the verification of the answer, where the com- plaint is verified, does not admit the suffi- ciency of the answer, nor dispense with the necessity of a specific denial. Harney v. Porter, 62 Cal. 511. A plaintiff will be held to have waived all objection to the verification, by a failure to except to it at the proper time, and will not be allowed to raise the point for the first time on ap- peal. McCullough V. Clark, 41 Cal. 298; San Francisco v. Itsell, 80 Cal. 57; 22 Pac. 74. Sufficiency of verification. The code does not require the defendant, when the answer is verified, to state in the affidavit that he has heard the foregoing answer read, and knows the contents thereof: the matters stated on information or belief, re- quired by the code, are used in opposition 1 Fair. — 25 to the rest of the answer, that is, to the matters stated positively. Fleming v. Wells, 65 Cal. 336: 4 I'ac. 197. A verilication is sufficient, which states that the party has read the foregoing petition, and is ac- (piainted with the contents thereof, and the same is true, of his own knowledge and belief: the words ''and belief" are mere surplusage. Seattle Coal etc. Co. v. Thomas, 57 Cal. 197. A statement in the verification, that "the matters set forth in the foregoing answer are true," is the equivalent of a statement that "the fore- going answer is true." Fleming v. Wells, 65 Cal. 336; 4 Pac. 197. A verification, that the foregoing complaint is true, of liis own knowledge, but not containing the statement that he has read the com- j)laint, or heard the complaint reail. and knows the contents thereof, is sufficient (Patterson v. Ely, 19 Cal. 28; Fleming v. Wells, 65 Cal. 336; 4 Pac. 197); as is also a verification, although not in the exact language of the statute, stating "that the foregoing answer is true, of this defend- ant's own knowleenter v. Shinners, 108 Cal. 359; 41 Pac. 473. Althou<,'h an affidavit of the plaintiff, denying the genu- ineness and the due execution of a note, pleaded in the answer, conies too late, yet he has the right to controvert the note by shov.-ing any other matters in confession or avoidance thereof. Mvers v. Sierra Valley Stock etc. Ass'n, 122 Cal. 6(59; 55 Pac. 689. The failure of the plaintiff, in an action to foreclose a mortgage, to file an affidavit (ienying the genuineness and the due exe- cutiou of a written instrument, set forth in the answer, purporting to extend the time of payment of the note secured by the mortgage, does not preclude proof by the plaintiff that the extension of time was without consideration. Brooks v. .Tohnson, 122 Cal. 569; 55 Pac. 423. An admission of the genuineness of a note, not purjiorting to have been made by the corporation de- fendant, does not involve an' admission that it was a corporation note: it may be showm that it was not authorized by the directors, and was without consideration. Myers v. Sierra Valley etc. Ass'n, 122 Cal. 669; 55 Pac. 689. Where a copy of a deed is annexed to the answer of the defendant, and the plaintiff fails to deny it by af3- davit, it is not necessary for the defendant to offer the deed in evidence. Eosenthal V. Merced Bank, 110 Cal. 198; 42 Pac. 640; Eianda v. V\"atsonville Water etc. Co., 152 Cal. 523; 93 Pac. 79. A will set up in an answer, which is not alleged to have been admitted to probate, is not an instrument up)on which any defense or cause of action can be founded; its genuineness and due execution are not admitted by the failure of the plaintiff to deny the same by affi- davit. Estate of Christensen, 135 Cal. 674; 68 Pac. 112. Where the defendant sets forth in his answer a written release as a bar to the i>laiiififf's cause of action, and on the trial introduces evidence showing that such release has never been delivered, he is estopped from claiming the Vjenefit of the admission arising out of the plaintiff's failure to deny by affidavit the genuine- ness and the due execution of the instru- ment. Clark v. ChibI, 66 Cal. 87; 4 Pac. 105S. Where the defendant, in an action upon an alleged joint contract, set up sepa- rate contracts for the same matter, the plaintiffs, notwithstanding their failure to file the affidavit required by this section, are not precluded from proving by parol the contract alleged in the comjdaint. Fox V. Stockton etc. Agricultural Works, 73 Cal. 273; 15 Pac. 430. New matter as a defense to instrument. While new matter in an answer is deemed controverted without any s]iecial rejdica- tion, and the plaintiff has the right, while not denying the genuineness and the due execution of the instrument set out in the answer, to show other matters in confes- sion or avoidance thereof, yet the court, unless he brings to its attention his pur- pose to offer such evidence, cannot assume that he desires to make any such defense; and where a motion is made by the de- fendant to dismiss a petition, on the ground of failure of the pietitioner to deny the genuineness and the due execution of an instrument set out in the answer, is not opposed on the ground that the petitioner desires to show that it was not freely en- tered into, or for an adequate considera- tion, or that it was superseded by a subsequent agreement, or that its per- formance was waived, but was opposed on other grounds, the motion is jjroperly granted. Estate of Garcelon, 104 Cal. 570; 43 Am. St. Rep. 134; 32 L. E. A. 595; 38 Pac. 414. CODE COMMISSIONERS' NOTE. Seo Ely v. Frisbie, 17 Cal. 250, cited in note 1, 5 446, ante. § 449. Exceptions to rules prescribed by two preceding" sections. 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. Inspection of writings, order for. Post, § 1000. Legislation § 449. 1. Enarted March 11, 1872; ■based on the proviso of Practice Act, § 54, as amended by Stats. 1865-66, p. 702, which read: "Provided, that the due execution of the instru- ment shall not be deemed to be admitted by a failure to controvert the same on oath, as pre- scribed in this and the last preceding section, unless the party controverting the same is, upon demand, permitted to inspect the original before filing such answer." When eiiacted in 1872, § 449 constituted the first paragraph of the pres- ent section, except that the word "instrument" was then printed "instruments." 3. Amended by Code Amdts. 1880, p. Ill, adding the last sentence. §452 GENERAL RULES OF PLEADING. 390 CHAPTER VII. GENERAL RULES OF PLEADING. 5 452. Pleadings to he liberally construed. i 453. Sham and irrelevant answers, etc., may be stricken out. 5 454. How to state an account in a pleading. ! 455. Description of real property in a pleading. i 456. Judgments, how pleaded. 457. Conditions precedent, how to be pleaded. i 458. Statute of limitations, how pleaded. i 459. Private statutes, how pleaded. § 460. Libel and slander, how stated in com- plaint. § 461. Answer in such cases. § 462. Allegations not denied, when to be deemed true. When to be deemed controverted. § 463. A material allegation defined. § 464. Supplementiil complaint and answer. § 465. Pleadings subsequent to complaint must be filed and served. §452. Pleadings to be liberally construed. In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. of the pleader (Farish v. Coon, 40 Cal. 33) ; but averments contained in a paper, not a part of the pleading, although filed with it, cannot be considered in connection there- with. Kimball v. Union Water Co., 44 Cal. 173; 13 Am. Rep. 157. Construction against pleader. Gould, in his work on Pleading, p. 141, § 169, says: "The rule is founded, not only upon the pre- sumption that each party's statement is the most favorable to himself, of which his case will admit; but also upon the obviously rea- sonable principle, that it is incumbent on each pleader, in stating the ground of his action or defense, to explain himself fully and clearly; any ambiguity, uncertainty, or omission in the pleadings, must there- fore be at the peril of that party in whose allegations it occurs." The pleader selects the language, and should make himself clear, and where there are two intend- ments, the pleading will be construed against the pleader; the rule is enforced under the reformed procedure, which re- quires liberality in the construction of pleadings, where the pleading is reasonably capable of two constructions, one favorable and the other unfavorable to the pleader, and where there is an omission of a fact essential to be pleaded. Woodroof v. Howes, 88 Cal. 184, 198; 26 Pac. Ill; Green V. Covillaud, 10 Cal. 317; 70 Am. Dec. 725; Landers v. Bolton, 26 Cal. 393; Castro v. Clarke, 29 Cal. 11, 16; Rogers v. Shannon, 52 Cal. 99; Glide v. Dwyer, 83 Cal. 477; 23 Pac. 706; Silver Creek etc. Water Co. v. Hayes, 113 Cal. 142; 45 Pac. 191. And, in the absence of a special demurrer, where the pleading is capable of different con- structions, that which the pleader gives it, or which the court finds necessary to sup- port the action, will be adopted. Ryan v. Jaques, 103 Cal. 280; 37 Pac. 186. The rules of pleading, upon which the state- ment of the cause of action or defense depends, are founded upon good sense; their object is precision and brevity, which should characterize all pleadings; the plead- ings ought to be so drawn that a good issue may be joined thereon, and the court be entitled to give a judgment; it was a rule of the common law, firmly established and Legislation § 452. Enacted March 11, 1872; based on Practice Act, § 70 (New York Code, § 159). When enacted in 1872, (1) the word "effect" was changed from "effects," and_ (2) the word "must" was changed from "shall." Construction by the court. Pleadings must be construed by the court, as a mat- ter of law: in no case should the construc- tion of pleadings be left to the jury. Tevis v. Hicks, 41 Cal. 123, 127; Taylor v. Mid- dleton, 67 Cal. 656, 657; 8 Pac. 594; 15 Morr. Min. Rep. 284; Glide v. Dwyer, 83 Cal. 477, 479; 23 Pac. 706. .This section should be given a liberal construction. Williams v. Pomona Valley Hospital Ass'n, 21 Cal. App. 359; 131 Pac. 888. Defects not affecting substantial rights. It is a maxim, that the law respects form less than substance (Civ. Code, § 3528); therefore it is the duty of the court, at every stage of the proceedings, to disre- gard any defect of pleading which does not affect the substantial rights of the par- ties. Eachus V. Los Angeles, 130 Cal. 492; 80 Am. St. Rep. 147; 62''Pac. 829; Manning V. App Consol. Gold Mining Co., 149 Cal. 35; 84 Pac. 657. A complaint is sufficient, where a substantial cause of action is alleged. Ingraham v. Lyon, 105 Cal. 254; 38 Pac. 892. Grammatical inaccuracies do not vitiate a pleading (In re Ramazzina, 110 Cal. 488; 42 Pac 970); and an alle- gation of a conclusion of law may be dis- regarded (Doyle v. Phoenix Ins. Co., 44 Cal. 264) ; but the pleading should show clearly and affirmatively the relief de- manded. Bigelow V. Gove, 7 Cal. 133. Pleading construed as a whole. The pleading must be construed as a whole. Nevada County etc. Canal Co. v. Kidd, 28 Cal. 673. Its sufficiency is to be deter- mined from its general scope and tenor (Glide v. Dwyer, 83 Cal. 477; 23 Pac. 706; Bates v. Babcock, 95 Cal. 479; 29 Am. St. Rep. 133; 16 L. R. A. 745; 30 Pac. 605; Sprigg v. Barber, 122 Cal. 573; 55 Pac. 419) ; and every allegation is to be regarded with reference to the context. Alemany v. Pctaluma, 38 Cal. 553. It is therefore not permissible to treat an isolatdl sentence, separated from the context ami from other j)ortions of the pleading, as an independent averment, contrary to the manifest intent 391 CONSTRUCTION — INFERENCES — GENERAL ALLEGATIONS. §452 constantly acted ui)on, that a i)lcailing should be most strongly taken against its author. Estate of Wickershum, 153 Cal. 603; 96 Pae. 311; Evinger v. Moran, 14 Cal. App. 328; 112 Pae. 68. But, however, where the ambiguity has been j^ointed out by spe- cial demurrer, which the court has sus- tained, on appeal, after refusal to amend, the ambiguity and uncertainty will be re- solved against the i)leader. Mctntyre v. Hauser, 131 Cal. 11; 63 Pae. 69. But this rule will not operate to force a construc- tion that will lead to absurdities, if the pleading is reasonably susceptible of a different interpretation. Marshall v. Shaf- ter, 32 Cal. 176. An interpretation which gives effect is preferred to one that makes void. Civ. Code, § 3541. The interpreta- tion must be reasonable. Civ. Code, § 3542. The rule never requires a pleader to antici- pate a defense, or to negative the existence of all other facts whatsoever. Woodroof V. Howes, 88 Cal. 184, 198; 26 Pae. Ill; Jaffe V. Lilienthal, 86 Cal. 91; 24 Pae. 835. If, then, the allegation is not susceptible of two meanings, but the question is as to its sufficiency, it will be given the mean- ^ ing the pleader places on it, if it is reason- ably capable of such construction. Moore V. Moore, 56 Cal. 89. The pleading upon which a judgment is founded will be given as favorable an interpretation as its gen- eral scope will warrant (Fudickar v. East Eiverside Irrigation Dist., 109 Cal. 29; 41 Pae. 1024) ; and defects in the pleading, consisting of facts appearing by implica- tion only, are cured by verdict or findings necessarily implying the existence of said facts; but this rule does not apply where the findings are contrary to the inference or implication. Hildreth v. Montecito Creek Water Co., 139 Cal. 22; 72 Pae. 395. Where a defect might have been obviated by amendment, and the party proceeds to trial without objecting thereto, he cannot raise the objection for the first time upon appeal. Hill v. Haskin, 51 Cal. 175; Du Bois v. Podgham, 18 Cal. App. 298; 123 Pae. 207. Facts not alleged will not be assumed. It is an established maxim of jurispru- dence, peculiarly applicable to pleadings, that that which does not appear to exist is to be reearded as if it did not exist. Civ. Code, §3530; Slater v. McAvoy, 123 Cal. 437; 56 Pae. 49; Hildreth v. Montecito Creek Water Co., 139 Cal. 22; 72 Pae. 393. In the construction of a pleading, nothing can be assumed in favor of the pleader which has not been averred (Cogswell v. Bull, 39 Cal. 320; Harris v. Hillegass, 54 Cal. 463; Smith v. Buttner, 90 Cal. 95; 27 Pae. 29); but, on the contrary, agreeably to the maxim just quoted, the court will assume, where a fact is not alleged, that it does not exist (Slater v. McAvov, 123 Cal. 437, 439; 56 Pae. 49; Hildreth v. Montecito Creek Water Co., 139 Cal. 22; 72 Pae. 395), or that it occurred at a time or place or in a manner to defeat the claim of the ])leader. Triscony v. Orr, 49 Cal. 612; Collins v. Townsend, 58 Cal. 608; Hays V. Steiger, 76 Cal. 555; 18 Pae. 670; People v. Wong Wang, 92 Cal. 277; 28 Pae. 270; Krause v. Sacramento, 48 Cal. 221; Ben- ham V. Connor, 113 Cal. 168; 45 Pae. 258; Siskiyou Lumber etc. Co. v. Rostcl, 121 Cal. 511, 513; 53 Pae. 1118; Lewiston Turnpike Co. V. Shasta etc. Wagon Road Co., 41 Col. 562. No intendment can be indulged in aid of a pleading (Callahan v. Loughran, 102 Cal. 476, 482; 36 Pae. 835): whatever facts are necessary to the cause of action must be alleged, or they will be taken as having no existence (Callahan v. Lough- ran, 102 Cal. 476; 36 Pae. 835; Hildreth v. Montecito Creek Water Co., 139 Cal. 22; 72 Pae. 395); and it will be presumed that every fact that can be proved has been alleged. Gruwell v. Seybolt, 82 Cal. 79; 22 Pae. 938. The court cannot insert any necessary issuable facts in a pleading (Guy v. Washburn, 23 Cal. Ill; Moore v. Bessc, 30 Cal. 570, 572) ; and any inference against the pleader, plainly deducible from a fail- ure to allege facts, must be drawn by the court. Chipman v. Em.eric, 5 Cal. 49; 03 Am. Dec. 80. General allegations controlled by those that are specific. General allegations in a pleading are controlled, limited, and modi- fied by particular ones. Hinkley v. Field's Biscuit etc. Co., 91 Cal. 141; 27 Pae. 594; Gruwell v. Seybolt, 82 Cal. 7; 22 Pae. 938. This is in harmony with the maxim, that particular expressions qualify those that are general. Civ. Code, § 3534. But incon- sistent allegations nullify one another. Dickinson v. Maguire, 9 Cal. 46. Dilatory pleas not favored. The party making a dilatory plea relies upon tech- nical law to defeat his adversary: he is therefore held to technical exactness in his pleading. Thompson v. Lyon, 14 Cal. 39, 42. CODE COMMISSIONERS' NOTE. All plead- ing is taken most strongly against the pleader (Kashaw v. Kashaw, 3 Cal. 322; Moore v. Besse, 30 Cal. 570; Green v. Covillaud, 10 Cal. 317; 70 Am. Dec. 725) ; but this rule does not apply whore the pleader confesses his pleading is bad, and that it imperfectly and ambiguously expresses his meaning and intent, and therefore appeals to the mercy of the court to be allowed to amend it in furtherance of justice, so as to present his case more clearly. Nevada County etc. Canal Co. v. Kidd, 28 Cal. 684; see also Felch v. Beaudry, 40 Cal. 440. Nor does the rule apply when it would make the pleading absurd, if it will bear any other construction. Marshall v. Sliafter, 32 Cal. 176. In construing a pleading, an isolated sen- tence should not be taken separated from its con- text, and the effect of an independent averment given to it, unless from the whole pleading such appears to have been the plain intent. Parish v. Coon, 40 Cal. 33. By substantial justice is meant substantial legal justice, to be ascertained and determined by fixed rules and positive statutes, and not the abstract and varying notions of equity which may be entertained by each in- dividual. Stevens v. Ross, 1 Cal. 98; see also Rowe V. Chandler, 1 Cal. 167. 453 GENERAL RULES OF PLEADING. 392 § 453. Sham and irrelevant answers, etc., may be stricken out. Sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its dis- cretion, impose. Legislation § 453. Enacted March 11, 1872, based on Practice Act, § 50. as amended by btats. 1&65-66 p. 702, and Practice Act, § 5 < (isew York Code, § 160). So much of § 50 as relates to the subject read: "Sham and irrelevant an- swers and defenses, and so much of any plead- ing as may be irrelevant, redundant, or imma- terial mav be stricken out, upon motion, upon such terms as the court in its discretion may im- pose." And § 57 read: "If irrelevant or reaun- dant matter be inserted in a pleading, it may De stricken out by the court on motion of any per- son aggrieved thereby." What is a sham answer. A sham answer is one good in form, but false in fact, and not pleaded in good faith. Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692; Greenbaum V. Turrill, 57 Cal. 285; Gostorfs v. Taaffe, 18 Cal. 385; Wedderspoon v. Rogers. 32' Cal 569; Continental Building etc. Ass'u V. Boggess, 1-45 Cal. 30, 3i; 78 Pae. 245. A frivolous answer is one that denies no material averment in the complaint and sets up no defense: such an answer entitles the plaintiff to judgment on the pleadings (Hemme v. Hays, 55 Cal. 337); but where the answer is rendered evasive by a mere clerical error, a judgment on the pleadings is not warranted. Raker v. Bueher, 100 Cal. 214; 34 Pac. 654, 849. The code does not change the common-law rule in regard to striking out sham answers: an answer cannot be stricken out upon this ground, where it sets up a sufficient defense (Green- baum V. Turrill, 57 Cal. 285) ; as where it traverses all the allegations of the com- plaint (Brooks V. Chilton, 6 Cal. 640, 642; Abbott V. Doualass, 28 Cal. 295, 297; Fay V. Cobb, 51 Cal. 313, 315), or the greater part thereof (Lybecker v. Murray, 58 Cal. 186) ; or even one material allegation CBank of Shasta v. Bovd, 99 Cal. 604; 34 Pac. 337; Toland v. Toland. 123 Cal. 140; 55 Pac. 681; Oroville etc. R. R. Co. v. Super- visors, 37 Cal. 354) ; but where it raises an issue on immaterial matters only, it may be stricken out. Loveland v. Garner, 74 Cal. 298, 300; 15 Pae. 844. It will be seen, therefore, that it results from the eases, that it is only where a defendant, in bad faith, presents a defense which is mani- festly false on its face, or where the an- swer denies no material allegation of the complaint, or sets up no defense, that the answer may be stricken out: the court will be liberal in the allowance of amendments, where the answer is susceptible of amend- ment by a statement of known facts, so as to constitute a defense. Burns v. Scooffv, 98 Cal. 271; 33 Pac. 86. A mere inconsis- tency between the facts alleged and those adduced at the trial does not justify the court in granting the motion to strike out; and the correctness of the order is to be tested by reference to the state of the pleadings at the time it was made. Baker V. Southern California Ry. Co., 106 Cal. 257; 46 Am. St. Rep. 237; 39 Pac. 610. A demurrer, not being a defense, could not, under the Practice Act, be stricken out as sham (Larco v. Casaneuava, 30 Cal. 560, 566); and of course it cannot, under the code, since it only authorizes the striking out of "answers," and not "defenses," as provided in § 50 of the Practice Act. See Davis V. Honey Lake Water Co., 98 Cal. 415; 33 Pac. 270. The court should strike out improper matter from the counterclaim. Bartlett Estate Co. v. Fraser, 11 Cal. App. 373; 105 Pac. 130. Irrelevant and redundant matter. A pleading should be confined to a simple narrative of such facts as are necessary to constitute a cause of action or defense, and should state the ultimate facts only (Mitch- ell V. Steelman, S Cal. 363), and not pro- bative facts or conclusions of law. Cali- fornia Raisin Growers' Ass'n v. Abbott, 160 Cal. 601; 117 Pac. 767. Irrelevant, im- material, and evidentiary matter, having no office to fill, should not be inserted in a pleading, nor allowed to encumber the rec- ord (Larco v. Casaneuava, 30 Cal. 560, 565; Eich V. Greeley, 112 Cal. 173; 44 Pac. 483; Green v. Palmer, 15 Cal. 414; 76 Am. Dec. 492); and such matter will be stricken out on motion (Coryell v. Cain, IB Cal. 572; Smith V. Richmond, 19 Cal. 480; Bowen v. Aubre.y, 22 Cal. 570; Patterson v. Key- stone Mining Co., 30 Cal. 364; Bruck v. Tucker, 42 Cal. 351), as will also irrelevant matter blended with allegations of mate- rial facts (Willson v. Cleaveland, 30 Cal. 192); but the court is not bound to strike out matters so blended, where the adverse party is not prejudiced thereby. Sloane v. Southern California Ry. Co., Ill Cal. 668, 684; 32 L. R. A. 193; 44 Pac. 320. Words of description, such as "duly," "wrong- fully," and "unlawfully," which tender no issue, and detract from the directness and simplicity of a pleading, will also be stricken out (Miles v. McDermott, 31 Cal. 271), as well as all surplusage (Wheeler v. West, 78 Cal. 95; 20 Pac. 45; Warner v. Steamship Uncle Sam, 9 Cal. 736; Mitchell V. Steelman, 8 Cal. 369; Mora v. Le Rov, 58 Cal. 10; Millan v. Hood, 3 Cal. Unrep. 548; 30 Pac. 1107), and irrelevant matter, not constituting a cause of action or de- fense (Boggs v. Clark, 37 Cal. 236; Bates v. Sierra Nevada etc. Mining Co., 18 Cal. 171; Weimer v. Lowerv, 11 Cal. 104; Sileox v. Lang, 78 Cal. 118; "20 Pac. 297; Barklv v. Copeland, 74 Cal. 1; 5 Am. St. Rep. 413;' 15 Pac. 307), and matter of inducement, which adds nothing to the sufficiency of the pleading (Henke v. Eureka Endowment Ass'n, 100 Cal. 429; 34 Pac. 1089; Bremner 393 MOTION TO STRIKE OUT — HEARING — SHAM ANSWERS. §453 V. Leavitt, 109 Cal. 130; 41 Pac. 859); but facts whii'h constitute a necessary part of the pleading, although defectively stated, cannot be reached by the motion. Jackson V. Lebar, 53 Cal. 255; Swain v. Burnette, 76 Cal. 303; 18 Pac. 394; Baker v. South- ern California By. Co., 106 Cal. 257; 4(5 Am. St. Eep. 237; 39 Pac. 610; McDermont V. Anaheim Union Water Co., 124 Cal. 112; 56 Pac. 779. The matter to be stricken out must be redundant and irrelevant as to the pleading in which it occurs, not as to a cause of action or defense stated in another pleading. Nevada County etc. Canal Co. v. Kidd, 28 Cal. 673. Necessity and suflR.ciency of motion to strike out. Where the facts alleged in a pleading are redundant, the pro])er remedy is a motion to strike out, ami not by demurrer. Henke v. Eureka Endowment Ass'n, 100 Cal. 429; 34 Pac. 1089; Mitchell V. Steelman, 8 Cal. 363. The motion should be specific, and clearly point out the par- ticular matters objected to. People v. Em- pire Gold etc. Mining Co., 33 Cal. 171. It must not be directed against the whole pleading, but against particular words, clauses, sentences, and allegations. Con- tinental Building etc. Ass'n v. Bosgess, 145 Cal. 30; 78 Pac. 245. The court cannot strike out matter of its own motion. Cur- tis V. Sprague, 41 Cal. 59. Motion to strike out answer, and hear- ing thereon. The motion must be made upon notice. A rata v. Tellurium etc. Min- ing Co., 65 Cal. 340; 4 Pac. 195. If made upon uncontroverted aflSdavits showing the falsity of the plea and the bad faith of the defendant, it will be stricken out, but where the defendant supports his plea by an affidavit, stating specifically his grounds, he cannot, as a general rule, be deprived of a trial in the ordinary mode. Gostorfs V. Taaflfe, 18 Cal. 385. The court cannot dispose of the defendant's answer in a summary way, nor inquire, in advance of the trial, as to the good faith of the de- fendant in pleading his defense. Fay v. Cobb, 51 Cal. 313. Under no possible cir- cumstances can the court hear oral testi- mony on the issue of the falsity of the plea, in advance of the trial. Abbott v. Douglass, 28 Cal. 295. The true rule seems to be, that the answer must appear to be sham on its face (Sweetman v. Ramsey, 22 Mont. 323; 56 Pac. 361), or by reference to some matter dehors the record, of which the court may take judicial notice. Edson V. Dillaye, 8 How. Pr. 273; 1 Bac. Abr. 32. All objections to the allegations on the ground that they are sham and irrelevant are waived bv introducing evidence. Tvnan V. Walker, 35 Cal. 634; 95 Am. Dec."l52; Silvarer v. Hansen, 77 Cal. 579; 20 Pac. 136. Where the name of the attoi^ey of record appears at the foot of an answer, in connection with the name of other coun- sel, the court, on motion to strike out the answer, will not try the question whether the signature is genuine, or was put there by associate counsel without any express authority. Willson v. Cleaveland, 30 Cal. 192. The action of the court will not be disturbed, except for an abuse of discre- tion. Clapp V. Vatcher, 9 Cal. App. 462; 99 I-'ac. 549. A counterclaim cannot be stricken out without notice to the defend- ant. Curtis V. Sprague, 41 Cal. 55. The correctness of an order striking a special defense from the original answer is to be tested by reference to the state of the pleadings at the time the onler was made; and it cannot be supported upon the ground that the defendant subsequently amended his answer by setting up an inconsistent defense: tlie question is, whether the facts as pleaded would constitute a defense to the cause of action stated in the complaint. Baker v. Southern California Ev. Co., 106 Cal. 257; 46 Am. St. Rep. 237; 39 Pac. 610. What constitutes frivolous answer. See note 70 Am. Dfc. 6:!n, Striking out answer as sham. See note 72 Am. Dec. ."j'il. Sham pleadings. See note 113 Am. St. Rep. 639. COBE COMMISSIONERS' NOTE. 1. Sham an- swers. .See piirticulnrly Piercy v. Sabin, 10 Cal. 27; 70 Am. Dec. 692, commented on in note 42 to § 437, ante. A sham answer, said the court, in Piercy v. Sabin, 10 Cal. 27, 70 Am. Dec. 692, was one good in form, but false in fact, and not pleaded in good faith. The same definition, sub- stantially, was given by tlie court of appeals of New York in the case of the People v. McCuraber, 18 N. Y. 315; 72 Am. Dec. .515. It was sug- gested, however, that the power to strike out should be carefully exercised, and not extended beyond its just limits. "It is a power," said the court, "simply to inquire whether there is in fact any question to be tried, and if there is not, but the defense is a plain fiction, to strike out the fictitious defense. Where a defendant, on a mo- tion to strike out his defense as sham, supports it by an affidavit, stating specially its grounds, he cannot, as a general rule, be deprived of a trial in the ordinary mode — a case for striking out does not exist."' Whether the statute applies to any but affirmative defenses, it is unnecessary to determine; but there is no doubt that where affirmative matter is falsely pleaded for the pur- pose of delay, it should be stricken out. If the defense, however, be bona fide, the affidavit of the defendant to that effect will be a sufficient answer to any attempt to strike it out. (iastorfs V. Taaffe, 18 Cal. 387. When the plaintiff claims that all the denials are bad, if the answer con- tains no new matter, he may test the sufficiency of the denials by a motion for judgment upon the pleadings, or by motion to strike out the an- swer, on the ground that it is sham. If some of the denials are deemed good and the othprs bad, he may move to strike out the latter. This course is authorized under this section. Answers consisting of denials which do not explicitly traverse the material allegations of the complaint, we hold to be so far sham and irrelevant, within the meaning of the statute. People v. McCumber, 18 X. Y. 315; 72 Am. Dec. 515; Gay v. Winter, 34 Cal. 161. 2. Immaterial, redundant, or irrelevant mat- ter. All redundant, immaterial, or irrelevant matter should be stricken out. Bowen v. Aubrey, 22 Cal. 566; Guy v. Washburn, 23 Cal. Ill; Willson V. Cleaveland, 30 Cal. 192; Larco v. Casaneuava, 30 Cal. 561; Felch v. Beaudry, 40 Cal. 440. 3. Frivolous defense. An answer by the payor of a note, that the plaintiff is not the lawful 454 GENERAL RULES OF PLEADING. 394 owner or holder of the instrument sued on, when upon its face it runs to him, and which discloses no issuable fact in support of such denial, is sim- ply frivolous. Felch v. Beaudry, 40 Cal. 440. See further sections of this code, relating to com- plaint, answer, and demurrer. § 454. How to state an account in a pleading. 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. Exhibiting origiual account, and delivering does not preclude the party from giving evidence thereof, as the truth of the items is the very point at issue: it is only where the party refuses to furnish any account, after demand in writing, that he is pre- cluded from giving evidence thereof. Gra- ham V. Harmon, 84 Cal. 181; 23 Pac. 1097. This section is applicable to a claim for an aggregate amount for labor done and mate- rials furnished for the construction of a vessel. Jensen v. Dorr, 159 Cal. 742; 116 Pac. 553. Bill of particulars of account stated. In an action upon a stated account, a party is not authorized, under this section, to de- mand a bill of particulars of the items of the original account upon which the stated account is based: the stated account is a new contract, and the items of the original account are merged therein (Auzerais v. Naglee, 74 Cal. 6U; 15 Pac. 371); but the party is entitled to a copy of the alleged stated account. Coffee v. Williams, 103 Cal. 550; 37 Pac. 504. A complaint in the form of a common count for goods sold and delivered, is suflScient as a statement of a cause of action: the defendant may always exact his statement of the particu- lars of the account. Salinas Valley Lumber Co. V. Magne-Silica Co., 159 Cal. 182; 112 Pac. 1089. Further account on order of court. If the bill of particulars is too general, the party cannot ignore it, but should ask for a further account (Providence Tool Co. v. Prader, 32 Cal. 634; 91 Am. Dec. 598); and, when furnished, it supersedes the other. Ames V. Bell, 5 Cal. App. 1; 89 Pac. 619. When the account furnished is adjudged defective, and the court or .Judge orders a further account, the order must state the particulars in reference to which a further specification is required. Conner v. Hutch- inson, 17 Cal. 279. If the bill of particu- lars furnished under such order is not satisfactory to the party, and he intends to object to the introduction of evidence on the subject, he must obtain an order, previous to the trial, to exclude such evi- dence. Conner v. Hutchinson, 17 Cal. 279; McCarthv v. Mount Tecarte Land etc. Co., 110 Cal.' 687; 43 Pac. 391. An amended bill of particulars may include items of a general account for services not specifically mentioned in previous bills. Ames v. Bell, 5 Cal. App. 1; 89 Pac. 619. Where the court, of its own motion, orders a further copy to adverse party. See post, § 886. Legislation § 454. 1. Enacted March 11, 1872; based on l^ractice Act, § 56 (New York Code, § 158). When enacted in 1872, (1) in first line, the words "is not" were changed from "shall not be," and (2) the word "must," before "deliver," was changed from "shall." 2. Amended by Code Amdts. 18SO. p. 2. Purpose and effect of bill of particu- lars. The object of the bill of particulars is to amplify the pleadings and apprise the adverse party of the specific demand against him. Auzerais v. Naglee, 74 Cal. 60; 15 Pac. 371; Ames v. Bell, 5 Cal. App. 1; 89 Pac. 619. The eft'ect of the bill is to restrict the evidence and limit the re- covery to the matters set forth therein. Ames V. Bell, 5 Cal. App. 1; 89 Pac. 619; Edelman v. McDonell, 126 Cal. 210; 58 Pac. 528. It becomes a part of the pleading of the party, and he must recover, if at all, on the cause therein stated. Chapman v. Bent, 6 Cal. Unrep. 740; 65 Pac. 959. A de- fendant can ascertain the items of a claim, under this section. Donegan v. Houston, 5 Cal. App. 626; 90 Pac. 1073. A demand for a copy of the account is the only rem- edy of a party, who is dissatisfied with the general allegation of indebtedness in the pleading of his adversarv. Wise v. Hogan, 77 Cal. 184; 19 Pac. 278;' Burns v. Cushing, 96 Cal. 669; 31 Pac. 1124; Rogers v. Duff, 97 Cal. 66; 31 Pac. 836; Farwell v. Murray, 104 Cal. 464; 38 Pac. 199; Pleasant v. Samuels, 114 Cal. 34; 45 Pac. 998; McFar- land V. Holcomb, 123 Cal. 84; 55 Pac. 761; .lewell V. Colonial Theater Co., 12 Cal. App. 681; 108 Pac. 527; Aydelotte v. Bloom, 13 Cal. App. 56; 108 Pac. 877. If no bill of particulars is demanded, each item of the account may be proved under the general allegation of the pleading. Knight v. Russ, 77 Cal. 410; 19 Pac. 698; Burns v. Cushing, 96 Cal. 669; 31 Pac. 1124; Tompkins v. Mahoney, 32 Cal. 231; McFarland v. Hol- comb, 123 Cal. 84; 55 Pac. 761. In an ac- tion for legal services, a bill of particulars may be demanded, though the complaint is not subject to special demurrer for am- biguity and uncertainty. Burns v. Cushing, 96 Cal. 669; 31 Pac. 1124. In an action for services anri traveling expenses, any uncer- tainty as to the sum claimed for either item may be cured by a bill of particulars, .lewell V. Colonial Theater Co., 12 Cal. App. 681; 108 Pac. 527. A mistake in the items of the account, discovered at the trial, 395 BILL OP PARTICULARS — WAIVER — REALTY — DESCRIPTION. §455 account, it cannot preclude the pnrty from giving evidence, because of his failure so to furnish a further account. Hart v. Spect, 62 Cal. IST. Waiver of objection to bill of particu- lars. Ulijcctioii to a liill of partiiulars may be waived by delay (Ames v. IJoll, 5 Cal. Aj)p. ]; 89 Pae. 611)); and tlicre is a waiver, by a failure to object to the form or substance of the account furnished, un- til the commencement of the trial. Denui- son V. Smith, 1 Cal. 437. Where a bill of ]iarticulars is not so complete as the de- fendant desires, or is objectional)le in any resjicct, he waives his right to have the jdaintifr precluded from giving evidence thereof, if he fails to ask for a further account, or to make any objection to the one delivered. Union Lumber Co. v. Morgan, 162 Cal. 722; 124 Pac. 228. Amendment of bill of particulars. See note 51 Am. St. Rep. 421. Bill of particulars in negligence cases. See note 3 Ann. Cas. 161. CODE COMMISSIONERS' NOTE. The objec- tion that a bill of partieulars is not properly verified by the oath of the party comes too late upon the trial. If the bill is not satisfactory to the defendant, either because it is defective in form or in substance, or becau.se it is not veri- fied by the plaintiff, he should immediately re- turn it, or move the court for a further amended bill. Deunison v. Smith, 1 Cal. 437; see also Providence Tool Co. v. Prader, 32 Cal. 634; 91 Am. Dec. 598; Conner v. Hutchinson, 17 Cal. 280. in an action upon a note, defendant, in peneral terms, without items, set up an account for work and labor, and for money paid, etc. Plaintiff asked for a copy of the account, which was furni.«hi'd by defendant. Plaintiff gave notice that he would move the court "for a further ac- count of particulars," etc.; and on hearing, the court ordered the same, which defendant sup- plied. On the trial, plaintiff offered his note, and rested. Def<'ndant offered evidence of the account set up in the answer, to which plaintiff objected, on the ground that "defendant had not furnished an additional bill of particulars," and the court ruled out the evidence. This was an erroneous rulinp;: first, because the order for a further account was defective, in not slating the particulars, in reference to which a further speci- fication was required: and second, if the bill of particulars, delivered under the order of the court, was not satisfactory, and plaintiff intended to object to any evidence upon the subject, he should have obtained, previous to the trial, an order excluding such evidence. Where a copy of the account sued on, or set forth in the answer, is called for under this section of the code, the items of the account furnished must be stated with as much particularity as the nature of the case admits of; but the law does not require im- possibilities; and if the party gives the items as definitely as he can, he does not forfeit his rights because of his inability to comply with a further demand for particulars. Conner v. Hutch- inson, 17 Cal. 280. Where the complaint set forth the bill of sale in its precise words, it was held not to be defective in the description of the quantity of the goods sold. A party must be presumed to know what was intended by his own account. Cochran v. Goodman, 3 Cal. 244. If, in an action to recover a certain amount due for legal services, the complaint is in general terras, and the defendant asks for and receives a bill of particulars, he can make no objection to ad- milting evidence under it. Tompkins v. Mahoney, 32 Cal. 231. § 455. Description of real property in a pleading. In an action for the recovery of real proiJerty, it must be described in the complaint with such certainty as to enable an officer, upon execution, to identify it. scription calling for a definite starting- point, the first line being a given tlistanco therefrom to a station fence-post, and all the other lines being described by courses, distances, and monuments, is sufficient. Muir V. Meredith, 82 Cal. 19; 22 Pac. 1080. Where the starting-point in a description is sufficiently definite and certain, and there can be but one such point, this is sufficient, as against an objection that tho starting-point is not given. Sherman v. McCarthy, 57 Cal. 507. Where, in the com- jjlaint, the lot and block numbers are given, and reference is made to a certain plat of the town, and the street names and dis- tances are given, but reference is made to the caption of the comjilaint for the name of the county, there is a sufficient descrip- tion of the premises, and the county is sufficiently indicated. Doll v. Feller, 16 Cal. 432. Where the complaint gives the name of the county where suit is brought, but fails to mention the state, there is no fatal defect. More v. Del Valle, 28 Cal. 170. A description of the premises as being in a certain county and state, giving the num- ber of acres, the commonly known name of the property, and also the distance in a certain direction from a named town, is sufficient. Whitney v. Buckman, 19 Cal. Legislation § 455. Enacted March 11, 1873; based on Practice Act, § 58, which read: "In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint." Sufficiency of description of realty. A description by name may be sufficient, where the land is known by a particular name. Hildreth v. White, 66 Cal. 549; 6 Pac. 454. A description of land by name is as good as one by metes and bounds, if it can be rendered certain by evidence; and the fact that the Spanish name of property, when translated into English, is meaningless, does not alter or aflfect its de- scriptive quality. Castro v. Gill, 5 Cal. 40; People V. Leet, 23 Cal. 161; Phelan v. Poyoreno, 74 Cal. 448; 13 Pac. 681; 16 Pac. 241. A description is sufficient, where a ranch is designated by name, with the statement that it is bounded by certain misions, and contains si.K square leagues. More V. Del Valle, 28 Cal. 170. The de- scription of land in a complaint, as being in a certain township, county, and state, and bounded on one side by a certain avenue, and on the other side by the land of a certain person, and on the other two sides by a certain creek, is sufficient. Hihn V. Mangenberg, 89 Cal. 268; 26 Pac. 968; Lawrence v. Davidson, 44 Cal. 177. A de- §456 GENERAL RULES OF PLEADING. 396 300. The sufficiency of the description of the premises is a question of fact for the court or jury to determine, where the de- scription does not appear, on the face of the complaint, to be insufficient. Moss v. Shear, 30 Cal. 467. A description giving the starting-point as a certain distance from a government base line, thence east a given distance, thence south to a certain point, thence west to the source of a cer- tain creek, and down said creek to place of beginning, is sufficient. Carpentier v. Grant, 21 Cal. 140. In actions before jus- tices of the peace, strictness of description is not required; and the identification is sufficient, where the premises are described as a tract of land in a certain county, ten miles from a certain town, of a given num- ber of acres, known as part of a certain ranch, on the west side of and bordering § 456. Judgments, how pleaded. In pleading a judgment or other deter- mination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, 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 the trial the facts conferring jurisdiction. a certain creek, and opposite the premises of a certain person. Hernandez v. Simon, 4 Cal. 182. CODE COMMISSIONERS' NOTE. This sec- tion formerly was as follows: "In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint." Foreclosure suits were not controlled by this section (Emeric v. Tams, 6 Cal. 156); and under this section as it then stood, it was held that a complaint describing land by a cer- tain name was as good a description as one by metes and bounds, if it can be rendered suffi- ciently certain by evidence. Castro v. Gill, 5 Cal. 40; Stanley v. Green, 12 Cal. 148; see also Doll V. Fellers, 16 Cal. 432 ; Whitney v. Buck- man, 19 Cal. 300; Paul v. Silver, 16 Cal. 73; Green v. Palmer, 15 Cal. 411; 76 Am. Dec. 492; Grady v. Early, 13 Cal. 103; Carpentier v. Grant, 21 Cal. 140; Moss v. Shear, 30 Cal. 468. The language of the section, as it now stands, seems to express the general intent of the decis- ions of our supreme court. For description of real property, see Piercy v. Crandall, 34 Cal. 344. Judgment as an estoppel. See post, § 1908. Legislation § 456. Enacted March 11, 1873; based on Practice Act, § 59 (New York Code, §161). When enacted in 1872, (1) the words "court, officer, or board, it is not" were changed from "court or officer of especial jurisdiction, it shall not be," and (2) the word "must" was changed from "shall be bound to." Jurisdiction of a superior court. A gen- eral averment of the jurisdiction of the court that rendered judgment is sufficient (Murdock v. Brooks, 38 Cal. 596), and im- plies all things essential to jurisdiction. Hibernia Sav. & L. Soc. v. Boyd, 1.55 Cal. 193; 100 Pac. 239. An allegation, that the plaintiff recovered judgment in the su- perior court is sufficient. McCutcheon v. Weston, 6.5 Cal. 37; 2 Pac. 727; Campe v. Lassen, 67 Cal. 139; 7 Pac. 430; Weller V. Dickinson, 93 Cal. 108; 28 Pac. 8.54; High V. Bank of Commerce, 9.5 Cal. 386; 29 Am. St. Eep. 121; 30 Pac. 556. An allegation, that the court "adjudged" that the defend- ant "should pay" to the plaintiff a certain sum, is not a sufficient allegation that the judgment was duly given. Edwards v. Hel- lings, 99 Cal. 214; 33 Pac. 799. An allega- tion that an appeal was dismissed by the superior court, if not complying with this section, is cured by an allegation in the answer, that the court made an order that the aj)peal be iiik. 30 Cal. 486; see Mickle ▼. San- chez, 1 Cal. 200. An averment that the plaintiff has fully performed, on his part, all conditions of the contract, is an allegation of performance sufiiciently explicit under this section. California Steam Nav. Co. v. Wripht, ti C.&\. 2.'>8; 65 Am. Dec. 511. A general statement of the perform- ance of conditions precedent, is sufficient in cases of contract, but. in all oilier cases, the facts .showing a performance mu.st be specially pleaded. If an act of the lecislature prescribes conditions precedent on the i)erformance of which title to land may be recovered, in pleading such title a performance of all ihe acts required under the law must be averred. People v. Jackson, 24 Cal. G.30; see al.so. generally, Benslev v. Atwill, 12 Cal. 231; Gibbons v. Scott, 15 Ca'l. 284; Himme! man v. Danos. 35 Cal. 448. The perfor;iiance of all conditions which are precedent to the lia- bility of the defendant, whether founded upon a contract or a statute, must be alleged in some form, either general or special. In actions upon contracts, a general allegation of performa'ice of conditions precedent is under this section (§ 457) of the code sufficient. Hut a general allei;atioii of performance of conditions prescribed by a stat- ute has not been so declared, and is not, there- fore, sufficient. Himinelman v. Danos, 35 Cal. 448; citing the cases of Dye v. Dye, 11 Cal. 163; People V. Jackson, 24 Cal. 630. Eeference to section of statute of limita- tions. Setting up the statute of limita- tions by reference to sections of this code, is a sufficient pleading of a prescriptive right. Alhambra Addition Water Co. v. Richardson, 72 Cal. 598; 14 Pac. 379; Churchill v. Louie, 135 Cal. 608; 67 Pac. 1052. The statute of limitations is suffi- ciently pleaded by reference, in the an- swer, to the sections of the code. Packard V. Johnson, 2 Cal. Unrep. 365; 4 Pac. 632; Alhambra Addition Water Co. v. Richard- son, 72 Cal. 598; 14 Pac. 379; Webber v. Clarke, 74 Cal. 11; 15 Pac. 431; Allen v. Alien, 95 Cal. 184; 16 L. R. A. 646; 30 Pac. 213. The defense of the statute of limitations may, under this section, be pleailed by a mere reference to the sec- tions pleaded: it is not necessary to state the facts. Lillis v. People's Ditch Co., 3 Cal. Unrep. 494; 29 Pac. 780; Churchill v. Woodworth, 148 Cal. 669; 113 Am. St. Rep. 324; 84 Pac. 155. By the averment that the action is barred by the provisions of a designated section of the code, the statute is sufficiently pleaded. Lilly-Brackett Co. V. Sounemann, 157 Cal. 192"; 21 Ann. Cas. 1279; 106 Pac. 715. A plea of the statute of limitations, alleged in the form pre- scribed by this section, is sufficient for all purposes. Miller v. Lane, 160 Cal. 90; 116 Pac. 58. The rule established by this sec- tion was intended to simplify the form of pleading the defense of the statute of limi- tations, and is one which the court can- not depart from on a conjecture that the legislature intended to except from its operation cases of the kind provided for by § 361, ante; hence, pleading the bar of such section by reference to its number is sufficient. Allen v. Allen, 95 Cal. 184; 16 L. R. A. 646; 30 Pac. 213. In pleading the statute of limitations, the proper course is to plead the section establishing the time of limitation, omitting all reference to explanatory sections. Webber v. Clarke, 74 Cal. 11; 15 Pac. 431; Hagely v. Hagely, 68 Cal. 348; 9 Pac. 305. Where the sec- tion contains subdivisions, pleading the statute by reference to the section alone is insufficient: the number of the subdi- vision must also be given. W'olters v. Thomas, 3 Cal. Unrep. 843; 32 Pac. 565. In pleading the defense of the statute of limitations, it is not necessary to set up the section and subdivision of the statute. if the facts showing the bar of the statute are alleged. Osborn v. Hopkins, 160 Cal. 501; Ann. Cas. 1913A, 413; 117 Pac. 519. The legal effect of pleading the bar of the statute by reference to the section relied, upon, by an averment that the action is barred by that section, is the same as the plea non assumpsit infra sex annos, to which the reply was assumpsit infra sex annos. Biddel v. Brizzolara, 56 Cal. 374. §459 GENERAL RULES OF PLEADING. 400 Allegation. of limitations. A general al- legation, that the action is barred by the statute prescribing two or any other num- ber of years as the limitation for bringing the action, is insufEcient. Sehroeder v. Jahns, 27 Cal. 274. An allegation, that the cause of action did not accrue within two years next "preceding the commence- ment' of the action," is not defective, in alleging a conclusioil of law; it is not ne- cessary to allege that it was more than two years next preceding the filing of the complaint. Adams v. Patterson, 35 Cal. 122. An allegation, that every item of the said account prior to such day is barred by time, and defendant pleads and relies upon the statute of the state of California, entitled "An Act defining the time of com- mencing civil actions," in bar of any re- covery of said action, is fatally defective. Caulfield v. Sanders, 17 Cal. 569. An aver- ment, in an action for personal services, that the plaintiff's cause of action for com- pensation for said services did not accrue within the two j'ears next before the com- mencement of this action, is sufficient (Os- born V. Hopkins, 160 Cal. 501; Ann. Cas. 1913A, 413; 117 Pac. 519); but a plea, not averring that the cause of action accrued, but only that the services contracted to be performed by the plaintiff were rendered, more than two years before the action was brought, is insufficient. Hartson v. Hardin, 40 Cal. 264. An allegation in the answer, that the defendant has been in the quiet and peaceable possession of the lands in- volved, adversely to the plaintiff, for a period of over five years, will be construed to relate to the five years next preceding the filing of the answer, and not to those preceding the commencement of the ac- tion. Table Mountain Tunnel Co. v. Strana- han, 31 Cal. 387. An allegation, that the action is barred by the statute, is not a statement of fact, but a mere conclusion of law. Sehroeder v. Jahns, 27 Cal. 274; Table Mountain Tunnel Co. v. Stranahan, 31 Cal. 387. Where the defendant pleads the bar of the statute, it is not necessary for him to rebut, in advance, matter which the plaintiff' might set up in avoidance. Anderson v. Fisk, 36 Cal. 625. Where the statute of limitations applying only to a particular class of cases is intended to be relied upon, it must be pleaded specially; a plea of the general statute is not suffi- cient. Howell V. Eogers, 47 Cal. 291. When pleading the bar of the statute, under the old rule the facts were required to be stated, and the court aiiplied the law: it was not necessary for the defend- ant to plead, in separate defenses, all the statutes on which he intended to rely. Boyd V. Blankman, 29 Cal. 19; 87 Am. Dec. 146. Burden of proof. If controverted, it devolves upon the defendant to show that a cause of action is barred. Black v. Ver- mont Marble Co., 1 Cal. App. 718; 82 Pac. 1U6U. Waiver of manner of pleading. An ob- jection to the nian)ier of pleading the bar of the statute is waived by failure to urge it in the trial court. Churchill v. Wood- worth, 148 Cal. 669; 113 Am. St. Rep. 324; 84 Pac. 155. Finding as to limitations. It is not necessarj'^ to find, in direct language, that the action is barred by the statute: to find the facts which show that it is so barred is sufficient. O'Neill v. Quarnstrom, 6 Cal. App. 469, 92 Pac. 391. CODE COMMISSIONERS' NOTE. The com- missioners say, in their reyurt, that they intro- duced this section, believing that a pleading under it will be more concise, and at the same time will afford to the opposite party all the in- formation necessary to enable him to meet the defense made. The utility of the section is mani- fest. For instance, if the action be for the re- covery of the possession of a mining: claim, instead of the lengthy averments now required, the plea will be as follows: "Defendant avers that the cause of action is barred by the provis- ions of § 320 of the Code of Civil Procedure." § 459. Private statutes, how pleaded. In pleading a private statute, or an ordinance of a county or municipal corporation, or a right derived there- from, it is sufficient to refer to such statute or ordinance by its title and the day of its passage. In pleading the performance of conditions precedent under a statute or an ordinance of a county or municipal corporation, or of a right derived therefrom, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part required thereby ; if such allegations be con- troverted the party pleading must establish on the trial the facts showing such performance. Legislation ft 459. 1. Enacted March 11. 1873; based on Practice Art, § 61 (New York Code, § 163), which read: "In pleading a private stat- ute, or a right derived therefrom, it shall be Kufficient to refer to such statute by its title and the day of its passage, and the court shall there- upon take judicial notice thereof." When en- acted in 1872, (1) the word "shall," before "suffi- cient," was changed to "is," and (2) the final clause, beginning "and the court," was stricken out. 2. Amendment by Stats. 1901, p. 135; un- constitutional. See note ante, § .'>. 3. Amended by Stats. 1907, p. 707; the code commissioner saying, "The words 'or an ordi- nance of a county or municipal corporation' have been added in the first sentence, and the whole of the second sentence has been added, the latter 401 ORDINANCES — LIBEL AND SLANDER ANSWER. §§460, -iGl amendment beinp made on the suggestion of the attorney^encral." Pleading ordinances. The provision of § 765 of the Municipal Corporation Act, that it shall not be necessary to plead or to prove the existence or valiility of any ordinance of a city of the fifth class, is unconstitutional, being a special statute; hence, an ordinance of a city of the fifth class is subject to the provisions of this section, ami therefore pleading an ordi- nance as "that certain ordinance of said city, known as ordinance No. 00," is in- sufficient. Tulare v. Hovren, 12G Cal. 22(i; 58 Pac. 530. Although the various ordi- nances are not set out in ha?c verba, nor pleaded as authorized by this section, yet, as against a general demurrer, their ex- istence must be considered. Amestoy v. Electric etc. Transit Co., 95 Cal. 31 f; 30 Pac. 550. CODE COMMISSIONERS' NOTE. See Dye v. Dye, 11 Cal. 163. § 460. Libel and slander, how stated in complaint. In an action for libel or slander it is not necessary to state in the complaint any extrin.sic facts for tlie 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 allegation be controverted, the plaintiff must establish on the trial that it was so published or spoken. Libel and slander. See Civ. Code, §§44etseq. Dreyfus, 122 Cal. 58; 54 Pac. 389. "Where it is alleged that the words were spoken of and concerning the plaintiff, and in the presence and hearing of the plaintiff and others named, an allegation that they were understood by those who heard them is Legislation § 460. Enacted March 11, 1873; based on Practice Act, § 62 (New York Code, § 164), which had (1) the words "shall not," in- stead of "is," in the first line, (2) the words "shall be," instead of "is," before "sufficient," and (3) the word "shall," instead of "must," before "establish." Libelous words. An allegation that words were spoken of and concerning the plaintiff is sufficient, where such words are actionable per se. Rhodes v. Naglee, 66 Cal. 677; 6 Pac. 863; Hitchcock v. Caruth- ers, 82 Cal. 523; 23 Pac. 48. The induce- ment and the colloquium are dispensed with by this section; and if the words charged are libelous in themselves, the plaintiff is required to allege only that they were spoken "of and concerning the plaintiff"; if not libelous in themselves, or if they require proof to determine their meaning or to show that they are libelous, or if they are in a foreign language, it is necessary to make such allegation as will show them to be actionable; but where the words are in the English language, it will be presumed that they are understood by the person hearing them, and an allega- tion to that effect is not required; the statute dispenses with the innuendo and the colloquium, only so far as they ^ow that the defamatory words applied to the plaintiff. Harris v. Zanone, 93 Cal. 59; 28 Pac. 845. The office of the innuendo is, merely, to interpret the meaning of the language used; and if the natural import of the language is not actionable, the innuendo cannot serve to introduce a broader meaning to make it so. Grand v. § 461. Answer in such cases. In the actions mentioned in the last section the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not he may- give in evidence the mitigating circumstances. 1 Fair. — 26 unnecessary. Rhodes v. Naglee 66 Cal. 677; 6 Pac. 863. Libel in foreign language. A libel pub- lished in a foreign language mav be pleaded by using, instead of a copy of the original, a correct translation, alleging it to be such. Stevens v. Kobavshi, 20 Cal App. 153; 128 Pac. 419. Where the .Japa- nese word "mekake" may be translated either "mistress" or "concubine," the use of theword "concubine," in rendering that word into English, is immaterial, and an objection based on the use of the latter word cannot be sustained. Id. CODE COMMISSIONERS' NOTE. Where the words complained of were not. in themselves libelous, it should be averred what the defendant intended and understood them to mean, and what they were understood to mean by those to whom they were published. And where the complaint only averred a libelous intent and meaning on deiendant s part in publishing the words, yet if there was no averment that they were so under- stood by those to whom they were published the complaint is defective and demurrable. Mav'nard V. Inreman's Fund Ins. Co., 34 Cal. 57- 91 Am Dec. 672 citing many authorities, and araong^ them the following: Goodrich v. Woolcott, 3 Cow 2d9; Andrews v. Woodmansee, 15 Wend 234- ^ 1*^°" ,o- T^Y'"'*''™*' '^ "^^'end. 320: De.xter v'. o^='''''nl^ 1°^'^^- 239; Peake v. Oldham, 1 Cowp. 275; 98 Eng. Reprint, 1083. See also, gen- erally, Bradley v. Gardner, 10 Cal. 371- Thrall V Smiley, 9 Cal. 529; Butler v. Howes,' 7 Cal §462 GENERAL RULES OF PLEADING, 402 Libel and slander. See Civ. Code, §§ 44 et seq. Legislation 8 461. Enacted March 11, 1873; rc-enactment of Practice Act, § 63 (New York Code, § 165). Justification and mitigation. To consti- tute a .iustifieation, the answer must aver the truth of the defamatory matter charged; without which, the facts detailed can avail only in mitigation of damages; setting up facts tending only to establish the truth of such matter is insufficient. Thrall v. Smiley, 9 Cal. 529. If, in a libel suit, the defendant pleads justification, he may also plead, with his affirmance of good faith and honest belief, all facts and cir- cumstances in support thereof, within his knowledge at the time of the publication, even if they tend to establish the truth of the charge; and if ke desires to plead jus- tification, and also the truth or partial truth in mitigation, he must plead these facts and circumstances in mitigation. Davis V. Hearst, 160 Cal. 143; 116 Pac. 530. Only such mitigating circumstances as were within the knowledge of the defendant when he spoke the words complained of can be alleged in the answer. Barkly v. Copeland, 74 Cal. 1; 5 Am. St. Rej). 413; 15 Pac. 307. The mitigating circum- stances permitted to be pleaded and proved must be such as tend to rebut the pre- sumption of malice, or to reduce its de- gree; all libels are conclusively presumed to be, in some degree, malicious; but there are different degrees and phases of malice; and some actionable defamatory publica- §462. Allegations not denied, when to he deemed true. When to be deemed controverted. Every material allegation of the complaint, not con- troverted 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 con- stituting a defense or counterclaim, must, on the trial, be deemed contro- verted by the opposite party. tions are in fact published without actual malice; it is eminently just, therefore, that the defendant, with a view to reduce the damages, should be allowed to rebut the presumption of malice by proof of what the statute terms "mitigating cir- cumstances," that is to say, the circum- stances under which the publication was made, and the real motives that induced it; but absence of actual malice cannot be shown in bar of the action. Wilson v. Fitch, 41 Cal. 363; Lick v. Owen, 47 Cal. 252. While it is ordinarily true that privi- lege is to be pleaded as an affirmative mat- ter of defense to an action for libel, yet W'here the complaint shows on its face that the publication was privileged, the point may be raised on general demurrer. Gosewisch v. Doran, 161 Cal. 511; Ann. Cas. 1913D, 442; 119 Pac. 656. Plea of justification in libel or slander. See note 91 Am. St. Rep. 29':;. Pleading the truth in action for libel or slander. See note 21 L. K. A. 511. Pleading truth as a defense to a civil action for libel and slander. See note 31 L. R. A. (N. S.) 138. CODE COMMISSIONEES' NOTE. The answer must aver the truth of the defamatory matter charged, if justification is soupht. Facts which only teud to establish the truth of such matter are not sufficient allegations. Without an aver- ment of its truth, the fact detailed can only avail in mitigation of damages. Thrall v. Smil?y, 9 Cal. 529. The defendant may prove the plain- tiff's words immediately after defendant uttered the slanderous words. Bradley v. Gardner, 10 Cal. 371. CroBS-complaint, must be replied to. See ante, § 442. Answers. See generally, ante, § 437. Material allegations. Post, § 463. Legislation § 462. Enacted March 11, 1872; based on Practice Act, § 65 (New Yorli Code, § 168), as amended by Stats. 1865-66, p. 703, which read: "Every material allegation of the complaint or cross-complaint not controverted by the answer thereto, shall for the purposes of the action be taken as true; the statement of matters in avoidan'-e shall on the trial be deemed contro- verted by the adverse party." Material allegations must be contro- verted. Immaterial allegations in a com- plaint need not be denied; and failure to answer them is not an admission. Eacouil- lat V. Rene, 32 Cal. 450; .Jones v. Petaluma, 36 Cal. 230. A mere denial of non-essential averments of a complaint is an admission of all that is essential to recovery. Leffingwell v. Griffing, 31 Cal. 231. Allegations in an- ticipation of the defense are not admitted by failure to deny them. Canfield v. Tobias, 21 Cal. 349. General denials of the alle- gations of a complaint do not amount to a specific denial thereof; hence, the material allegations of a verified complaint are ad- mitted. Dewey v. Bowman, 8 Cal. 145; Kensley v. Tartar, 14 Cal. 508. An answer denying, as a w^hole, the conjunctive alle- gatioiis of a verified complaint, is evasive, and an admis,sion of the allegations. Fish V. Redington, 31 Cal. 185. Where the de- nial is in the conjunctive, and does not constitute a denial of the averments of the complaint, the averments are admitted. Nolan V. Hentig, 138 Cal. 281; 71 Pac. 440. Where the answer specifically denies only two allegations of the complaint, all the others, well pleaded, are admitted. De Ro V. Cordes, 4 Cal. 117. Where the com- plaint avers that work was done in con- sideration of a certain promise, and the answer only denies that the i)laintiff did the work, no proof is required from the plaintiff as to the consideration upon which it was performed. Mathewson v. Fitch, 22 403 MATERIAL ALLEGATIONS — FAILURE TO DENY. §462 Cal. 86. Conclusion of law from facts stated do not call for a denial. Kidwell v. Ketler, 146 Cal. 12; 79 Pac. rA4. Matters of evidence set up in the complaint are not admitted either by a failure to deny, or by a defective denial. Racouillat v. Rene, 32 Cal. 450. In an action for divorce, alle- gations of residence must be proven, whether denied or not (Bennett v. Bennett, 28 Cal. 599); and if the complaint avers the marriage of the plaintiff and the de- fendant, failure to deny the averment is an admission of the fact. Fox v. Fox, 25 Cal. 587. The first clause of this section applies to an allegation in an answer, in an action upon a street assessment, that a certain resolution was not "duly" passed. Pacific Paving Co. v. Diggins, 4 Cal. App. 240; 87 Pac. 415. An allegation, in a veri- fied complaint, of an entry by the defend- ant and ouster by the plaintiff, is admitted by a denial in the answer, that the defend- ant wrongfully and unlawfully entered and dispossessed the plaintiff: such denial re- lates to the character, and not to the exi.stence, of these facts. Busenius v. Coffee, 14 Cal. 91. A denial that the defendant has unlawfully, wrongfully, and in viola- tion of the plaintiff's rights, had the pos- session, etc., is a mere denial of the character and not of the fact of possession, and is an admission of it, and such admis- sion is conclusive. Burke v. Table Moun- tain Water Co., 12 Cal. 403. A motion for judgment on a pleading is properly granted, where the complaint is sufficient in all re- spects, and the answer does not deny any of the material allegations thereof, and fails to present anything by way of new matter to bar or defeat the action. San Francisco v. Staude, 92 Cal. 560; 28 Pac. 778; Felch V. Beaudry, 40 Cal. 439; Hemme v. Hays, 55 Cal. 337; Loveland v. Garner, 74 Cal. 298; 15 Pac. 844. Wliere the complaint al- leges that an assignment of guaranty was made for a good consideration, failure to deny the allegation is an admission of the consideration. Cunningham v. Norton, 5 Cal. Unrep. 85; 40 Pac. 491. Imperfect and defective denials, if acted upon at the trial as sufficient, are in no sense admis- sions of the allegations of a pleading which are attempted to be denied. Loftus v. Fischer, 106 Cal. 616; 39 Pac. 1064. Ob- jections to defective denials are waived, if not taken before the introduction of evidence. Tevis v. Hicks, 41 Cal. 123; Stockton etc. Agricultural Works v. Glens Falls Ins. Co., 121 Cal. 167; 53 Pac. 565. Where the denials were defective, and the plaintiff had gone into the evidence in re- lation to them without question, it is proper to refuse to instruct that certain facts were settled, for the purposes of the trial, by the admissions of the defendant in not denying them in his answer. Tvnan v. Walker. 35 Cal. 634; 95 Am. Dec. 152. In passing upon a motion for a new trial, the court may proj)erly consider admissions which follow a failure to deny material allegations of the complaint. Blodgett v. Scott, 11 Cal. App. 310; 104 Pac. 842. When allegations In complaint deemed true. There is no issue to be tried, and the material allegations of the complaint must be taken as true, where the answer fails to put them in issue, or to confess and avoid them (Patterson v. Ely, 19 Cal. 28; Brown v. Scott, 25 Cal. 189; Fish v. Red- ington, 31 Cal. 185; Pomeroy v. Gregory, 06 Cal. 572, 574; 6 Pac. 492, 493; Prentice v. Miller, 82 Cal. 570; 23 Pac. 189; Ortega V. Cordero, 88 Cal. 221; 26 Pac. 80; Lan- ders V. Bolton, 26 Cal. 393; McGowan v. McDonald, 111 Cal. 57; 52 Am. St. Rep. 149; 43 Pac. 418), and the plaintiff is en- titled to judgment on the pleadings. Blod- gett V. Scott, 11 Cal. App. 310; 104 Pac. S42. The failure to deny allegations of facts which create a presumption, ailmits the correctness of such allegations, and the presumption thus created by law operates to cast on the defendant the burden of proof, even though such presumption is one of evidence, and not one of pleading; its effect is to require a statement, in the com- plaint, of matters necessary to show the right to recover; but it does not compel the formal proof of matters which, being alleged, are admitted either expressly or impliedly, and such cases are subject to the general rules of procedure prescribed by this section. Oakland Bank v. Sullivan, 107 Cal. 428; 40 Pac. 546; Stockton v. Dahl, 66 Cal. 377; 5 Pac. 682. Allegations in the complaint, not controvertdl in the action, must, for the purposes of the ac tion, be taken as true (Crandall v. Parks, 152 Cal. 772; 93 Pac. 1018); they become admitted facts in the case. Merguire \. O'Donnell, 103 Cal. 50; 36 Pac. 1033. Facts distinctly and clearly averred in the com- plaint, and not denied in the answer, are admitted; evidence in support of them is unnecessary. Hanson v. Fricker, 79 Cal. 283; 21 Pac. 751. Failure to deny a ma- terial allegation of a complaint is an ad- mission thereof: a finding to the contrary is erroneous. Campe v. Lassen, 67 Cal. 139; 7 Pac. 430. All the material allegations of a verified petition, in the nature of a complaint, to show cause, not denied under oath, are to be taken as true: further evi- dence in support of them is unnecessary. California Title Ins. etc. Co. v. Consoli- dated Piedmont Cable Co., 117 Cal. 237; 49 Pac. 1. Failure to deny the execution of a mortgage containing a provision for the payment of attorneys' fees, where the complaint sets up the mortgage and alleges its due execution, is an admission of the right to attorneys' fees. Hubbard v. Uni- versity Bank, 125 Cal. 684; 58 Pac. 297. The corporate existence of a company is admitted bj' a failure to deny the allega- tion of such fact: a finding against such §462 GENERAL RULES OF PLEADING. 40^ admission cannot be sustained. Moynihan V. Drobaz, 124 Cal. 212; 71 Am. St. Rep. 46; 56 Pac. 1026. Where title to property is distinctly averred in the complaint and not denied in the answer, the fact is deemed admitted; no evidence is necessary upon such point. Pov^ell v. Oullahan, 14 Cal. 114. "Where the answer fails to deny the allegation that the plaintiff succeeded to the rights of another person in land, and that he is the owner thereof, the plain- tiff's ownership is admitted. White v. Costigan, 138 Cal. 564; 72 _Pac._ 178. Ownership alleged, and not denied, is ad- mitted. Santa Barbara v. Eldred, 108 Cal. 294; 41 Pac. 410; McGowan v. McDonald, 111 Cal. 57; 52 Am. St. Rep. 149; 43 Pac. 418. The allegation of extra work, in an action to foreclose a mechanic's lien, is admitted by a failure to deny: this admis- sion supports the lien. McGinty v. Morgan, 122 Cal. 103; 54 Pac. 392. The validity of proceedings under a void statute is not admitted by a failure to deny that such proceedings were duly and regularly taken. People V. Hastings, 29 Cal. 449. Where a fact is expressly alleged in the complaint, and not specifically denied in the answer, the jury should be instructed that such fact is admitted. Tevis v. Hicks, 41 Cal. 123. Where, from the whole conduct of a cause, it appears that a particular fact is admitted by the parties, the jury have the right to draw the same conclusion as to that fact as if it were proven in evi- dence, and to draw such conclusion as to all the issues on the record. Powell v. Oullahan, 14 Cal. 114. Where, in action for property destroyed, the complaint al- leges the value of all such property, in gross, for some items of which no recovery can be had, the answer, which contained no denial of the averment of value, will not be held as admitting the A^alue of the property for which a recovery may be had. Nunan v. San Francisco, 38 '^Cal. 689. An objection to an assessment, on the ground of the invalidity of the statute, is not obviated by a failure to deny an allega- tion that the assessment was duly and regularly made. People v. Hastings, 29 Cal. 449. Affirmative matter in answer deemed controverted. Affirmative matter in the answer is deemed controverted (People v. De la Guerra, 24 Cal. 73; Brvan v. Maume, 28 Cal. 238; Doyle v. Franklin, 40 Cal. 106; Brooks V. Haslam, 65 Cal. 421; 4 Pac. 399; Williams v. Dennison, 94 Cal. 540; 29 Pac. 946; Haines v. Snedigar, 110 Cal. 18; 42 Pac. 462; Reed v. Johnson, 127 Cal. 538; 59 Pac. 986; Green v. Duvergey, 146 Cal. 379; 80 Pac. 234; Sarnighausen v. Scannell, 11 Cal. App. 652; 106 Pac. 117), as is also new matter (Lillis v. People's Ditch Co., 3 Cal. Unrep. 494; 29 Pac. 780; Newsom V. Woollacott, ." Cal. App. 722; 91 Pac. 347; Burke v. Superior Court, 7 Cal. App. 178; 93 Pac. 1058), where it does not call for affirmative relief in behalf of the de- fendant. Melander v. Western National Bank, 21 Cal. App. 462; 132 Pac. 265. The admission of the execution and genuine- ness of an instrument set up in the answer is not an admission of new matter p!eare- sentative cajiacity of a substituted i)lain- tiff may be set up by way of amended complaint, and need not be pleaded by sup- jilemcntal complaint, when made on the l»art of the plaintiff. Campbell v. West, 93 Cal. 053; 29 Pac. 219, 645. The claimants of projierty, brought in as new parties to a foreclosure suit, by supplemental corn plaint filed more than four years after tho cause of action accrueroceeding, disregard any defect in a pleading or i)roceeding that does not substantially affect the rights of the par- ties. Miller v. Ballerino, 133 Cal. oHH; 67 Pac. 1046; 68 Pac. 600; Antonelle v. Ken- nedy etc. Lumber Co., 140 Cal. 309; 73 Pac. 966. Where the entire contract is set up in the answer, with the sjiecial aver- ment of the breach of an alleged condition precedent, the defendant cannot be allowed to say that he was misled by the plaintiff's failure to aver what the defendant knew, pleaded, and relied upon. Antonelle v. Ken- nedy etc. Lumber Co., 140 Cal. 309; 73 Pac. 966. Whei'e it cannot be determined until after the evidence has been received, whether there is a variance between the allegations of the complaint and the evidence offered, and the defendant does not make it appear that he is in any respect misled to his prejudice, no error is committed in strik- ing out the testimony. Moore v. Douglas, 132 Cal. 399; 64 Pac' 705. Where there is a difference between the allegations in the complaint and the proofs as to the amount of money to be paid, such difference is one only in quantity and extent, and does not constitute a legal variance, and could not have misled the plaintiff to his prejudice in maintaining his defense upon the merits to the defendant's cross-complaint, nor can it prevent the court from adjudging the relief to which the parties are entitled. Peasley v. Hart, 65 Cal. 522; 4 Pac. 537. Where the complaint alleges a joint pur- chase by a partnership and one of its mem- bers individually, and the evidence merely shows a sale to the partnership, the vari- ance is not material (Redwood City Salt Co. v. Whitney, 153 Cal. 421; 95 Pac. 885); nor is the variance material, where the difference between the contract offered and received in evidence and the contract pleaded in the complaint was merely as to the price to be paid for the work (Christen- son Lumber Co. v. Buckley, 17 Cal. App. 37; 118 Pac. 466); nor where the complaint alleges that goods damaged through the negligence of the defendant were in a building of the plaintiff, and the proof is that some of them were on the roof of the building (Yik Hon v. Spring Vallev Water Works, 65 Cal. 619; 4 Pac. 666); nor where the complaint, in an action for damages, alleges that the defendants owned, as ten- ants in common, the entire block in front of which the accident occurred, and the proof is that they owned distinct parcels thereof in severalty (Gay v. Winter, 34 Cal. 153) ; nor where the complaint alleges a false arrest and imprisonment upon a charge of larceny, and the evidence is con- flicting as to whether the arrest was upon §469 MISTAKES IN PLEADINGS AND AMENDMENTS. 410 that ground or upon a charge of disturb- ing the peace. Sebring v. Harris, 20 Cal. App. 56; 128 Pac. 7. Where the complaint alleges that the defendant entered on a date subsequent to that shown by the evi- dence, there is a variance; but, as the de- fendant was not misled to his prejudice, it is immaterial. Amador Gold Mine v. Amador Gold Mine, 11 4 Cal. 346; 46 Pac. 80. In an action for libel, proof that the libel included others besides the plaintiff is not a variance. Robinett v. McDonald, 65 Cal. 611; 4 Pac. 651. The variance be- tween the description in an authorization to sell land and that in the printed receipt on the back thereof, is not fatal, where both refer to an attached diagram, and all parties had reference to the same property. Melone v. Ruffino, 129 Cal. 514; 79 Am. St. Eep. 127; 62 Pac. 93. In an action for damages caused by fire, the place of the origin of the fire is not material, and the defendant could not have been misled by a variance upon the point, to its prejudice, in maintaining its defense upon the merits. Butcher v. Vaca Valley etc. Ry. Co., 2 Cal. Vnrep. 427; 5 Pac. 359. Where the com- plaint avers generally that property was loaned to the defendant, and that he con- verted it to his own use, and the evidence shows that it was loaned for a special pur- pose, but the defendant did not use it for that purpose, but converted it to his own use, the variance is immaterial, as the ad- verse party was not misled to his prejudice. Hitchcock V. McElrath, 72 Cal. 565; 14 Pac. 305. Where a total failure of consid- eration is set up in the answer, but the proof shows a partial failure only, the vari- ance is not an available one. Plate v. Vega, 31 Cal. 383. Proofs under pleadings. A party mak- ing an allegation that a sale was in writ- ing is not thereby precluded from proving that the sale was a verbal one. Patter- son V. Keystone Mining Co., 30 Cal. 360. Where the complaint alleges an express promise to pay a debt, barred by the stat- ute of limitations, it is competent to prove an acknowledgment from which a promise to pay is implied. Farrell v. Palmer, 36 Cal. 187. How variance objected to. Variance may be taken advantage of, either by ob- jecting to the admissibility of the evidence or by motion for nonsuit. Elmore v. El- more, 114 Cal. 516; 46 Pac. 458. Where the cause of action shown by the evidence is somewhat, but not radically, different from that stated in the complaint, the ob- jection of variance should be presented either by a specific objection to the evi- dence, or by a motion for a nonsuit on that particular ground. Eversdon v. Mayhew, 85 Cal. 1; 21 Pac. 431; 24 Pac. 382. A material variance between the contract as alleged and as proved is a ground of non- suit, unless the plaintiff obtains leave to amend his complaint so as to make it con- form to the proofs. Tomlinson v. Monroe, 41 Cal. 94. A serious variance, claimed to exist between the evidence of the plaintiff and that of his principal witness, cannot be considered on a motion for nonsuit Wassermann v. Sloss, 117 Cal. 425; 59 Am. St. Rep. 209; 38 L. R. A. 176; 49 Pac. 566. The question of variance cannot be raised for the first time on appeal (Bell v. Knowles, 45 Cal. 193; Knox v. Higby, 76 Cal. 264; 18 Pac. 381; Bode v. Lee, 102 Cal. 583; 36 Pac. 936; Baxter v. Hart, 104 Cal. 344; 37 Pac. 941; Swamp Land Dist. v. Glide, 112 Cal. 85; 44 Pac. 451; Barrell v. Lake View Land Co., 122 Cal. 129; 54 Pac. 594; Yik Hon v. Spring Valley Water Works, 65 Cal. 619; 4 Pac. 666), because the plaintiff is thereby deprived of an opportunity to amend his complaint to obvi- ate the objection of variance. Davey v. Southern Pacific Co., 116 Cal. 325; 48 Pac. 117. Where a party desires to raise the question as to any variance shown between allegations in a pleading and the proof offered at the trial, such objection must be presented to the trial court; otherwise it is waived. California Portland Cement Co. V. Wentworth Hotel Co., 16 Cal. App. 692; 118 Pac. 103, 113; Rutz v. Obear, 15 Cal. App. 435; 115 Pac. 67. Amendment to cure variance. Objec- tions on the ground of variance between the allegations of the complaint and the proof offered should be made at the trial, so that, if well taken, the complaint may be amended. Knox v. Higby, 76 Cal. 264; 18 Pac. 381. Under this section, amend- ments of pleadings may be allowed, upon terms. Hedstrom v. Union Trust Co., 7 Cal. App. 278; 94 Pac. 386. Where the case as proved and as found is not the case made by the complaint, the judgment will be reversed on appeal, in order that the complaint may be properly amended. Brvan V. Tormey, 84 Cal. 126; 24 Pac. 319. Where the complaint is for goods sold to two defendants jointly, a judgment ren- dered against one will be reversed, so that the complaint may be amended; but the issue cannot be changed in the supreme court. Dobbs v. Purington, 136 Cal. 70; 68 Pac. 323. Where the complaint states a cause of action upon an unconditional con- tract, but the plaintiff introduces the con- tract in evidence, which limits the liability of the defendant to certain losses, the court may permit the complaint to be amended. Clark V. Phcenix Ins. Co., 36 Cal. 168. Under the Practice Act of 1850, where the defect did not appear on the face of the complaint, the defendant could bring it forward by his answer, and then, in cer- tain cases, as a matter of course, and in others, on application to the court, and on such terms as were proper, the plaintiff could amend by adding or striking out the name of any party, or by correcting a mis- take in the name of a party, or a mistake in any other respect, and, upon the amended 411 IMMATERIAL VARIANCE — FINDINGS — AMENDMENTS. §470 missiniiprs. It accords with the construction placed l)y the courts upon the section as it originally stood. Catlin v. Gunter, 10 How. Pr. 321; Cothcal v. TalmadKe, 1 K. 1). Smith, 575; and SCO also Befjan v. O'Rielly, 32 Cal. 11; Plate V. Vega, 31 Cal. 383. •comjilaint and the answer thereto, the par- ties were ready to proceed to trial ui)ori the substantial merits. Kowe v. Chanosed of, nor after the time within which the plaintiff might have demurred, but did not, has expired. Tinglev v. Times Mirror Co., 151 ("al. 1; 89 Pac. 1097; Maiiha V. Union Fertilizer Co., 151 Cal. 5S1 ; 91 Pac. 393. This section is to be liberally construed, so as to confer an equal right to amend upon both parties as to all plead- ings, but not so as to confer greater rights upon one, in that respect, than are accorded to the other, or to work a hardship upon either party, or to interfere with the j)ro- gress of a trial after the issues of fact have been made. Tingley v. Times Mirror Co., 151 Cal. 1; S9 Pac. 1097. A defendant has not an absolute right, under this section, to file an amended answer- at any time be- fore trial (Manha v. Union Fertilizer Co., 151 Cal. 581; 91 Pac. 393); and it is not an abuse of discretion to refuse to allow further amendments, after a demurrer has been sustained to a third amended com- plaint. Billesbach v. Larkej', 161 Cal. 649; 120 Pac. 31. The right to amend, after the filing of a demurrer, is absolute, only when it is exercised before the demurrer is argued and submitted. Stewart v. Doug- lass, 148 Cal. 511; 83 Pac. 699; Manha v. Union Fertilizer Co., 151 Cal. 581; 91 Pac. 393. Upon the reversal of a judgment for the plaintiff, his right to amend the com- plaint is generally a matter of absolute right, and, when it is refused, the court must be able to say that the complaint cannot be amended so as to state a good cause of action. Norton v. Bassett, 158 Cal. 425; 111 Pac. 253. In general, the ques- tion whether or not the court has abused its discretion in granting or refusing per- mission to amend, depends upon the ques- tion whether the amendment is such a permissible one as will perfect a cause of action imperfectlv pleaded. Norton v. Bas- sett, 158 Cal. 425; 111 Pac. 253. An amended demurrer relates to the time of the filing of the original demurrer, and may be made as of course. Pittman v. Car- stenbrook, 11 Cal. App. 224; 104 Pac. 699. Answer after demurrer overruled. When a demurrer to the complaint is overruled, and there is no answer on file, it is within the discretion of the court to grant leave to answer, or to enter final judgment, espe- cially where the demurrer was manifestly frivolous, and confessedly put in to obtain time. Barron v. Deleval, 58 Cal. 95. The party whose demurrer is overruled ought to be required to obtain leave to answer, to satisfy the court that he has a substan- tial defense on the merits to the action; the allowance of leave to answer rests in the discretion of the court below, subject to review in case of it's arbitrary or unrea- sonable exercise. Thornton v. Borland, 12 Cal. 438; Gillan v. Hutchinson, 16 Cal. 153. When a demurrer to the complaint is over- ruled, it is not necessary that the order fix the time within which the answer must be filed, although the court has power to fix such time as it may deem proper; but if not fixed, the defendant should ansv.-er within the same time as in case of service of a coi)y of the original complaint with summons. Peojile v. Rains, 23 Cal. 127. Where the defense is invalid, it is not error to refuse to permit the defendant to amend his answer after judgment sustain- ing a demurrer thereto. Gillan v. Hutchin- son, 16 Cal. 153. A refusal to allow an amonower should be liberally exercised, in order to secure a fair and sjieedy trial on the merits, where the adverse party will not be prejudiced. Lestrade v. Barth, 17 Cal. 285; Hayden v. Havden, 46 Cal. 332; Walsh V. McKeen, 75 Cal. 519; 17 Pac. 673; Beronio v. Southern Pacific R. R. Co., 86 Cal. 415; 21 Am. St. Rep. 57; 24 Pac. 1093; Hibernia Sav. & L. Soc. v. Jones, 89 Cal. 507; 26 Pac. 1089; Burns v. Scooffy, 98 Cal. 271; 33 Pac. 86. Leave to amend, when addressed to the discretion of the court, should be liberally granted, in order to subserve the ends of justice (Robert- son v. Burrell, 110 Cal. 568; 42 Pac. 1086; McMillan v. Dana, 18 Cal. 339; Kirby v. Superior Court, 68 Cal. 604; 10 Pac. 119), . 421 AMENDMENTS — CHANGING PARTIES AND CAUSE OF ACTION. H73 and to secure a fair and speedy trial on the merits (Smith v. Yreka Water Co., 14 Cal. 201; Hay den v. Hay den, 46 Cal. 332; Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387), where the adverse party will not be prejudieed. Kirstein v. Madden, 38 Cal. 158; Wells Farfi;o & Co. v. McCarthv, 5 Cal. App. 301; 90 Pae. 203. The power of the court to allow amendments to be made is granted in general terms, unquali- fied by anything that relates to the juris- diction of the court; the mere fact that the matters to be amended relate to the jurisdiction of the court does not affect the power of the court to allow the amend- ments (Contra Costa Coal Mines K. R. Co. V. Moss, 23 Cal. 323); nor is the power of the court to allow amendments limited by the character of the mistake that calls forth its exercise: the fact that the pro- j)Osed amendment is based merely upon a mistake of law is immaterial. Gould v. Stafford, 101 Cal. 32; 3.5 Pac. 429. The court should allow an amendment, when- ever it appears that a party has committed a mistake, or error has occurred which could not have been reasonably avoided. Smith v. Brown, 5 Cal. 118. Amendments are not allowed as matter of course, but only upon good cause shown therefor. Hayden v. Hayden, 46 Cal. 332. In pass- ing upon an application for leave to amend, the controlling principle must be, whether the amendment is in furtherance of justice; and the application should be refused where the demand is unconscion- able. Daley v. Russ, 86 Cal. 114; 24 Pac. 867. The court has no power to strike out allegations that will deprive a party of an opportunity to try the question of his right to a portion of the property in- volved in the action. Howell v. Foster, 65 Cal. 169; 3 Pac. 647. A motion to amend the findings of fact, conclusions of law, and decree, after the decree has been en- tered in the case is irregular practice: the appropriate proceeding is a motion for a new trial. Pico v. Sepulveda, 66 Cal. 336; 5 Pac. 515. Amendment in superior court of plead- ings in justice's court. Upon an appeal from a judgment of a justice's court, on questions of law and fact, the superior court may allow amendments to the plead- ings, where issues of fact were made in the court below (Ketchum v. Superior Court, 65 Cal. 494; 4 Pac. 492); and, also, where the action is certified from a jus- tice's court to the superior court, the latter may permit amendments showing that the title to or the possession of real property is involved in the action, and that there- fore the superior court has jurisdiction; or it may permit amendments in any other respect, to the same extent as if the action had been commenced therein. Baker v. Southern California Ry. Co., 114 Cal. 501; 46 Pac. 604. Amendments changing parties. A party having leave to amend may l)ring in new parties, without special permission, where they are j)roper or necessary jjarties. Lou- vall v. Gridley, 70 Cal. 507; 11 Pac. 777. The court may allow the plaintiff to amend his com[)laint, by adding the name of an- other party plaintiff, where it does not affect the substantial rights of the par- ties (Polk V. Conin, 9 Cal. 56; Blood v. Fairbanks, 48 Cal. 171); or by striking out the name of a l>arty, on like conditions (Tormey v. Pierce, 49 Cal. 306); or by striking from the caption of the complaint the names of certain defendants, where the other defendants are not prejudiced thereby. Doane v. Houghton, 75 Cal. 360; 17 Pac. 426. Where an order is made by the court, striking names from the com- plaint, it is not necessary to file an amended complaint in the names of the remaining plaintiffs. Tormey v. Pierce, 49 Cal. 306. A complaint against a person in his representative capacity cannot be so amended as to state a cause of action against him personally: such amendment would be an entire change of the party defendant, and present a different suit. Stcrrett v. Barker, 119 Cal. 492; 51 Pac. 695. The substitution of one party for another, by order of court, is not such an amendment of a pleatling as is required to be made on notice, or to be engrossed otherwise than to be entered in the min- utes of the court; an order of court allow- ing the amendment of a pleading, by adding or striking out the name of a party, is different from an order of court substituting a party: the substitution is made by the court, whereas the amend- ment is allowed to be made by the party; an amendment, by adding or striking out the name of a party, is allowed only at the instance of the party whose pleading is to be so amended, while the substitu- tion may be had at the instance of either party; the addition or the striking out of the name of a party may require a dif- ferent defense, but the substitution of a party necessitates no change in that re- gard. Kittle V. Bellegarde, 86 Cal. 556; 25 Pac. 55. Amendment of complaint, changing cause of action. A complaint cannot be so amended as to introduce a new cause of action, particularly where such new cause of action is barred by the statute at the time of the proposed amendment (Peiser V. Griflin, 125 Cal. 9; 57 Pac. 690); nor is the plaintiff at liberty to strike out the entire substance and prayer of his com- plaint, and insert a new cause of action by way of amendment (Frost v. Witter, 132 Ca"i. 421; 84 Am. St. Rep. 53; 64 Pac. 705) ; but an amendment to the complaint may be allowed, where it does not change the nature of the action, or state an en- tirely new cause of action, although it §473 MISTAKES IN PLEADINGS AND AMENDMENTS. 422 enlarges or adds to the property described in the original complaint. Bulwer (Jousol. Mining Co. v. tttaudard Consol. Mining Co., S3 Cal. 613; 23 Fac. 1109. The rule that a new or different cause of action cannot be introduced by an amendment must be accepted with some qualification; for the most common kinds of amendments are those where the complaint does not state facts sufficient to constitute a cause of action; therefore all that can be re- quired is, that a wholly different cause of action shall not be introduced; or in other words, the matter of amendment must not be foreign to the original com- plaint. Frost V. Witter, 132 Cal. 421; 84 Am. St. Eep. 53; 64 Pac. 705. A plaintiff should not be allowed to amend his dec- laration so as to change the proceeding from an action ex contractu to an action ex delicto (Kamirez v. Murray, 5 Cal. 222); or an action ex delicto to an action ex contractu. Hackett v. Bank of Cali- fornia, 57 Cal. 335. Where a cause of action is limited to a claim presented to the administrator, and objections to the complaint cannot be met, the complaint cannot be amended so as to set up a new cause of action, upon a subsequent condi- tional promise. Morehouse v. Morehouse, 140 Cal. 88; 73 Pac. 738. An amendment changing only the remedy, and not the cause of action, is permissible. Frost v. Witter, 132 Cal. 421; 84 Am. St. Eep. 53; 64 Pac. 705. A cause of action at law may be so amended as to change it into a suit in equity (Walsh v. McKeen, 75 Cal. 519; 17 Pac. 673), where the claim, as presented to the executor, and upon which it is based, stated all the facts upon which the plaintiff relied. Porter v. Fillebrown, 119 Cal. 235; 51 Pac. 322. Under proper circumstances, the trial court may permit a cross-complaint in an action to be amended so as to set up fraud, even after the case has been submitted for decision. .Jackson V. Jackson, 94 Cal. 446; 29 Pac. 957. In an action of replevin, it is not error for the court to grant leave to the plaintiff to amend, after the evidence is closed, or before final submission of the case, so as • to transform the action virtually into one of trover, charging the defendant with converting property, and claiming dam- ages accordingly. Henderson v. Hart, 122 Cal. 332; 54 Pac. 1110. Where actual dam- ages are sought to be recovered, there is no change of the cause of action, if the plaintiff is permitted so to amend as to charge that the acts were willful and wan- ton. Esrey v. Southern Pacific Co., 103 Cal. 541; 37 Pac. 500. Where slanderous words, laid in the original complaint, are not qualified or altered in their sense or meaning by those ]>roved to have been used by the defendant, and the former are clearly embraced in the latter, and both substantially charge to the same effect, and the plaintiff amendcil his com- plaint by inserting the wo"rds proved, the cause of action is not thereby changed. Smullen v. Phillips, 92 Cal. 408; 28 Pac. 442. The plaintiff has the right to aban- don a demand made in his complaint, and to strike it therefrom by way of amend- ment; and if the complaint still states a cause of action, the court should compel the defendant to plead to it. St. Clair v. San Francisco etc. Ry. Co., 142 Cal. 647; 76 Pac. 485. An amendment to a com- l^laint is properly allowed to be filed, although it omits one of the causes of ac- tion set forth in the original complaint: the defendant cannot be injured by the abandonment of a cause of action allowed against him (Coneannon v. Smith, 134 Cal. 14; 66 Pac. 40); but where the amend- ment amounts to a discontinuance or abandonment of the action as originally brought, its allowance is improper. Hines v. Ward, 121 Cal. 115; 53 Pac. 427. The objection to an amended complaint, alleged to have been filed by leave of court, can- not be raised upon special demurrer to the complaint, but only on motion to strike out. Harvey v. Meigs, 17 Cal. App. 353; 119 Pac. 941. Amendment after demurrer sustained. The plaintiff should be allowed to amend his complaint, where a demurrer thereto has been sustained (Lord v. Hopkins, 30 Cal. 76) ; but it is not error to refuse per- mission to amend, where it is apparent that the amendment would produce no valid cause of action or defense. Gillan v. Hutchinson, 16 Cal. 153; Levinson v. Schwartz, 22 Cal. 229; Shepard v. McNeil, 38 Cal. 72; Ferrer v. Home Mutual Ins. Co., 47 Cal. 416. An amendment of the com- plaint, after the filing of a demurrer, but before the hearing thereon, should be al- lowed, the same as though the demurrer had been sustained (Lord v. Hopkins, 30 Cal. 76; Gallagher v. Delauey, 10 Cal. 410; Thornton v. Borland, 12 Cal. 438; Smith v. Yreka Water Co., 14 Cal. 201), and with- out prejudice to an injunction issued on the original complaint. Barber v. Rey- nolds, 33 Cal. 497. After the overruling of the demurrer, an amendment of the complaint may be allowed, the same as though the demurrer had been sustained. Phelan v. Supervisors, 9 Cal. 15. On sus- taining the demurrer, it is not error to fail to give leave to amend, where the party does not ask for such leave, or for any other order on the subject. Smith v Taylor, 82 Cal. 533; 23 Pac. 217; San Fran Cisco Paving Co. v. Fairfield, 134 Cal. 220 66 Pac. 255; Williamson v. Joyce, 140 Cal 669; 74 Pac. 290. An order sustaining a demurrer, without leave to amend, ordi- narily disposes of the ease; and, in the absence of any directions from the court, it is the duty of the clerk to enter an appropriate judgment. Le Breton v. Stan- ley Contracting Co., 15 Cal. App. 429; 114 Pac. 1028. Where the defense relied upon 423 TIME TO AMEND AMENDMENT TO ANSWER. 473 in tho answer is invalitl, it is not error to refuse iierniissioii to amend, after judg- ment sustuininy a demurrer to tho answer. Uillau V. ilutc^^hinsou, 10 Cal. 153. Time to amend. A motion to amend is always in time, where it immediately fol- lows the objection to tho sufficiency of the comjdaint or answer: a motion to amend the complaint does not come too late be- cause it is not made until after the de- fendant's motion for a nonsuit. Valencia V. Couch, 32 Cal. 339; 91 Am. Dec. 589. The court has discretion to limit the time in which an amended complaint shall be filed: it may direct that it be filed within twenty-four hours, where the plaintiff is familiar with the facts. Bchultz v. Mc- Lean, 109 Cal. 437; 42 Pac. 557. While it is not often necessary to amend a com- plaint after the case has been submitted, yet there is no limitation as to the time, before judgment entered, when the power of the court ceases: even after judgment the power may be exercised for the relief of a party, where the judgment results from mistake, inadvertence, surprise, or excusable neglect. Lee v. Murphy, 119 Cal. 364; 51 Pac. 549, 955. Where a defend- ant, upon the plaintiff's motion for judg- ment on the pleadings, intends to abandon his answer and substitute another in its stead, he should make application for leave before the judgment for the plaintiff is ordered. Felch v. Beaudry, 40 Cal. 439. It is proper to permit an answer to be amended after the jury is impaneled, where the plaintiff is not taken by sur- prise, or does not suffer any injury. Bero- nio V. Southern Pacific R. R. Co., 86 Cal. 415; 21 Am. St. Rep. 57; 24 Pac. 1093. After a judgment is reversed, the parties have, in the court below, the same rights which they originally had, and that court has discretion to permit any proper amend- ment to the pleadings. Heidt v. Minor, 113 Cal. 385; 45 Pac. 700. It is not error for the court to refuse to allow the plain- tiff to amend his complaint, pending a mo- tion for a new trial, so as to strike out an unnecessary averment. Gilliam v. Brown, 126 Cal. 160; 58 Pac. 466. The privilege of amending, after trial of the issue of law raised by the demurrer, is not one of right, but one resting in the discretion of the trial court; if the plain- tiff desires to amend again, he should ap- ply to the court below, and if refused, take his exception: it is too late to make the point for the first time on appeal, when nothing in the record shows abuse of discretion. Schaake v. Eagle Automatic Can Co., 135 Cal. 472; 63 Pac. 1025; 67 Pac. 759; Buckley v. Howe, 86 Cal. 596; 25 Pac. 132; Vanii v. Devoto, 10 Cal. App. 304; 101 Pac. 934. In an action to re- cover personal property, no judgment can be rendered directing the return of the property to the defendant, or in his favor for its value, where it has been delivered to the plaintiff, under proceedings in the action, until the defendant asserts his formal claim for return of the property, or its value, in the answer; and there can be no reason why the record should not be rounded, and a formal claim inserted in the answer, at any time prior to the actual entry of judgment. Pico v. Pico, 56 Cal. 453. Where there is unreasonable delay in presenting an amendment to a pleading, the court may properly refuse to allow it; and where there is no intima- tion of excuse for delay in presenting amendments long before allowed, until the case is declared substantially closed, they must be refused when presented. Emeric V. Alvarado, 90 Cal. 444; 27 Pac. 356. Tho court does not err in refusing the defend- ant leave to file an amended answer on the eve of the trial, where the jury is in at- tendance, and the cause is afterwards tried as if all the matters set forth in the amended answer were pleaded. Shadburne v. Daly, 70 Cal. 355; 18 Pac. 403. Where a case has been at issue nearly two years, and the trial has commenced, a proposed amendment to the answer, tendering new issues, is properly refused. Page v. Wil- liams, 54 Cal. 562. The court cannot allow an amendment to the complaint, when more than one year has elapsed since the rendition and entry of final judgment: such amendments are only allowed for cleri- cal misprisions, when the means for mak- ing them, and the right to make them, are furnished by the record itself. Kirby v. Superior Court, 08 Cal. 604; 10 Pac. 119. Where a party admits, in his answer, a material allegation, and the case is tried and judgment rendered, and a new trial is granted, he should not be allowed to amend his answer by changing the admis- sion into a denial. Spanagel v. Reay, 47 Cal. 608. Where a defendant, in his an- swer, virtually admits a material allega- tion of the complaint, and allows such admission to stand for nearly a year, and until the day of trial, before attempt- ing to controvert it, the refusal of the court to allow a proposed amendment to the answer, which is not positive in its nature, is not an abuse of discretion. Cook V. Suburban Realty Co., 20 Cal. App. 538; 129 Pac. 801. After a motion for a change of place of trial, the court cannot enter- tain a motion or make an order for tho amendment of the complaint in the matter of parties, any more than in the matter of substantive averments; and if, upon the case as it is then presenteil, the defendants are entitled to have their motion granted, they are entitled to have all judicial action in the cause determined in the superior court of their own county. Brady v. Times Mirror Co., 106 Cal. 50; 39 Pac. 209. Amendment to answer. Amendments are allowed to tho defendant with much more caution than to the plaintiff; yet, in a proper case, and with the spirit of §473 MISTAKES IN PLEADINGS AND AMENDMENTS. 424 equity, the same indulgence will be granted to the defendant as to the plain- tiff. Connalley v. Peck, 3 Cal. 75; Hooper V. Wells Fargo & Co., 27 Cal. 11; 85 Am. Dec. 211; Carpentier v. Brenham, 50 Cal. 5-19. The plaintiff cannot claim the right to enforce a judgment, which, through the mistake and excusable neglect of the de- fendant, was rendered in his favor: if the defendant has, without any fault on his part, been prevented from presenting his defense, it is but simple justice that he should have an opportunity so to do. Melde v. Reynolds, 129 Cal. "SOS; 61 Pac. 932. Where a defense is defectively pleaded, and the evidence thereunder is objected to, the defendant should be al- lowed to obviate such defect by amend- ment (Carpentier v. Small, 35 Cal. 346; Baker v. Southern California Ry. Co., 106 Cal. 257; 46 Am. St. Rep. 237; 39 Pac. 610) ; but a proposed amendment to an an- swer, not constituting a defense to the cause of action, nor the proper subject of a counterclaim, is properlv refused. Wig- more V. Buell, 116 Cal. 94; 47 Pac. 927. Where the answer in a foreclosure suit admits the due execution and acknowledg- ment of the mortgage, a proposed amend- ment, denying such acknowledgment, is properly refused: an amendment to the answer should not be allowed so as to permit a merely legal defense which is in- equitable (Bank of Woodland v. Heron, 122 Cal. 107; 54 Pac. 537), or to permit the setting up of a defense that could not be made under the original answer. Dorn V. Baker, 96 Cal. 206; 31 Pac. 37; Duff v. Duff, 101 Cal. 1; 35 Pac. 437; Ferrer v. Home Mutual Ins. Co., 47 Cal. 416; Edgar V. Stevenson, 70 Cal. 286; 11 Pac. 704. The court may, in its discretion, allow an amended answer to be filed, omitting a defense stated in the original answer, and averring an entirely different one: the defendant can generally set up as many defenses as he may have. Gould v. Staf- ford, 101 Cal. 32; 35 Pac. 429; Carrie v. Cloverdale Banking etc. Co., 90 Cal. 84; 27 Pac. 58. The action of the court in re- fusing to allow the filing of an amended answer, except to the portion of the com- plaint amended, is not error, where the remainder of the proposed answer does not differ, in any essential, from the answer on file. Hawthorne v. Siegel, 88 Cal. 159; 22 Am. St. Rep. 291; 25 Pac. 1114. It is proper to deny a motion to file an amend- ment to the answer so as to set up a judg- ment of a court having no jurisdiction of the subject-matter as a bar to the action. Kirsch v. Smith, 64 Cal. 13; 27 Pac. 942. Where the complaint is verified, and the answer tenders no material issue, and is evasive, not verified, nor any offer made to verify it, there is no error in refusing to allow the filing of an amended answer. Shepard v. McNeil, 38 Cal. 72. The court may allow a defendant bo to amend his cross-complaint as to aver a tender to the plaintiff, before suit, and the deposit of the amount in question in court. Crosby v. Clark, 132 Cal. 1; 63 Pac. 1022. An amendment, which changes an admission into a denial, cannot be allowed; but where it is not inconsistent with the admission, but is in harmony with it, and does not negative the admission, but explains it, it may be allowed. McPherson v. Weston, 85 Cal. 90; 24 Pac. 733. The fact that new matter, proposed to be set up oy amendment, was known to the defendant at the time of filing the original answer, is no good reason why the amendment should not be permitted. Pierson v. Mc- Cahill, 22 Cal. 127; Farmers' Nat. Gold Bank v. Stover, 60 Cal. 3S7; Sharon v. Sharon, 77 Cal. 102; 19 Pac. 230. Where, in an action for divorce, the answer does not contain any prayer for affirmative re- lief, the defect is cured by an amendment containing such praver. Mayr v. Mayr, 161 Cal. 134; 118 Pac. 546. Where a judg- ment is reversed, and remanded for a new trial, it is not error for the court, before such trial, to permit the defendant so to amend his answer as that complete justice may be done between the parties; and it is within the discretion of the court to allow a further amendment to such an- swer, during the second trial, where the plaintiff is not prejudiced thereby. Mc- Pherson V. Weston, 85 Cal. 90; 24 Pac. 733. An amended answer, filed without leave of court, after issue joined, may be stricken from the files. Worley v. Spreck- els Bros. Commercial Co., 163 Cal. 60; 124 Pac. 697. A defendant cannot answer an amended comjdaint by the allegation that it has been improperly filed: he should present an objection to such improper filing of the amendment, if an opportunity offers, or move to strike the amended pleading from the files. Wheeler v. West, 78 Cal. 95; 20 Pac. 45. The order granting leave to the defendant to amend his answer is no part of the judgment roll, and is not required to be entered thereon. Segerstrom v. Scott, 16 Cal. App. 256; 116 Pac. 690. Amendment setting up statute of limita- tions. It was formerly the rule, that, where the defendant failed to plead the statute of limitations at the proper time, he could not be permitted to amend his answer, introducing such plea, except to further the ends of justice (Cooke v. Spears, 2 Cal. 409; 56 Am. Dec. 348), and that the court did not err in refusing to permit the defendant to set up the bar of the statute after he had answered to the merits. Stuart v. Lander, 16 Cal. 372; 76 Am. Dec. 538. But the statutes of limita- tion have become rules of property, and are favored in law. San Diego Realty Co. v. McGinn, 7 Cal. App. 264; 94 Pac' 374. Where an amended complaint, curing a de- fect, does not state a new or different cause of action, it is error for the court 425 AMENDMENTS — EFFECT OF — TO CONFORM TO PROOF. §473 to refuse to permit it to be filed on the ground that a new cause of action, then barred by the statute, is therein stated. Ruiz V. Santa Barbara Gas etc. Co., 164 Cal. 188; 128 Pac. 330. A new cause of action cannot be introduced into the com- plaint, under the guise of an amendment, so as to a,yoid the bar of the statute. Nellis V. Pacific Bank, 127 Cal. 166; 59 Pac. 830. Where the effect of the proposed amendment to the complaint would be, not to state a new cause of action against the original defendants, but only an original cause of action against a new defendant, the latter may effectually plead the bar of the statute. Harrison v. McCormick, 122 Cal. 651; 55 Pac. 592. It is not error to permit the defendant, in his amended answer, to plead the statute of limitations, where its consideration did not enter into the judgment. Hibernia Sav. & L. Soc. v. Jones, 89 Cal. 507; 26 Pac. 1089. The stat- ute of limitations commences to run from the date of the filing of an amended com- plaint stating a new cause of action. An- derson V. Mayers, 50 Cal. 525. A failure to find upon a plea of the statute of limi- tations is not material, where the other facts found are sufficient to support the judgment. Richter v. Henningsan, 110 Cal. 530; 42 Pac. 1077. The question of the statute of limitations cannot be raised upon an appeal from a judgment by de- fault, taken upon a judgment roll contain- ing Rcither answer nor demurrer. Hunter V. Bryant, 98 Cal. 247; 33 Pac. 51. Amendment to conform to proof. Amendments to pleadings, so as to enable the party to prove all the facts necessary to his cause of action or defense, are favored, subject to the right of the oppo- site party to a continuance in case of sur- prise, or subject to such other terms as may be just. Crosby v. Clark, 132 Cal. 1; 63 Pac. 1022. The court may, in fur- therance of justice, permit the defendant, even after the evidence is closed, to deny, by an amended answer, certain averments to the complaint (Hibernia Sav. & L. Soc. V. Jones, 89 Cal. 507; 26 Pac. 1089), if an opportunity is afforded to meet the amend- ment. Anglo-California Bank v. Field, 154 Cal. 513; 98 Pac. 267. Where a complaint, praying for legal relief, states facts en- titling the plaintiff to equitable relief, the court nmy, even during the trial, per- mit the prayer to be so amended as to ask for the appropriate equitable relief. Walsh V. McKeen, 75 Cal. 519; 17 Pac. 673. Where, at the close of the trial, the plaintiff declines to amend his complaint, upon opportunity offered by the court so to do, whereupon the court announced that, should it become necessary, it would, of its own motion, amend the complaint to make it conform to the case made, and the suit is decided against the plaintiff, without any amendment being made, the plaintiff cannot afterwards be allowed to treat the complaint as amended. Carpeu- tier V. Brenham, 50 Cal. 549. Effect of amended upon original plead- ing. An amended pleading supersedes the original. Barber v. iievnobls, 33 Cal. 497; Kelly v. McKibben, 54'Cal. 192; Kentfield v. Hayes, 57 Cal. 409; Thompson v. John- son, 60 Cal. 292; Mott v. Mott, 82 Cal. 413; 22 Pac. 1140, 1142; Schneider v. Brown, 85 Cal. 205; 24 Pac. 715; La Societe Fran^aise etc. v. Weidmann, 97 Cal. 507; 32 Pac. 583; Collins v. Scott, 100 Cal. 446; 34 Pac. 10S5; Miles v. Woodward, 115 Cal. 308; 46 Pac. 1076; Witter v. Bachman, 117 Cal. 318; 49 Pac. 202; Linott v. Rowland, 119 Cal. 452; 51 Pac. 687; Nellis v. Pacific Bank, 127 Cal. 166; 59 Pac. 830; Welsh v. Bardshar, 137 Cal. 154; 69 Pac. 977; Rooney v. Gray, 145 Cal. 753; 79 Pac. 523. After a pleading has been amended, admis- sions in the original pleading cannot there- after be introduced in evidence against the party making them. Miles v. Wood- ward, 115 Cal. 308; 46 Pac. 1076. Where an amended complaint has been filed, the original ceases to perform any further function as a pleading (Barber v. Rey- nolds, 33 Cal. 497; Kelly v. McKibben, 54 Cal. 192; Kentfield v. Hayes, 57 Cal. 409; Thompson v. Johnson, 60 Cal. 292; Schneider v. Brown, 85 Cal. 205; 24 Pac. 715; La Societe Fran^aise etc. v. Weid- mann, 97 Cal. 507; 32 Pac. 583; Collins v. Scott, 100 Cal. 446; 34 Pac. 1085; Miles v. Woodward, 115 Cal. 308; 46 Pac. 1076); and has the effect to vacate the default of the defendant previously entered. Kelly v. McKibben, 54 Cal. 192; Schneider v. Brown, 85 Cal. 205; 24 Pac. 715; Linott v. Rowland, 119 Cal. 452; 51 Pac. 687. Where the amendment more fully sets forth the cause of action defectively alleged in the original complaint, it merely supersedes the original, and takes its place, without affecting the identity of the original. Nellis V. Pacific Bank, 127 Cal. 166; 59 Pac. 830. An amendment to the com- plaint, in matter of substance, after entry of default, constitutes a new complaint, and has the effect of opening the default (Witter V. Bachman, 117 Cal. 318; 49 Pac. 202) ; it only supersedes the pleadings founded upon the original complaint: it does not affect a cross-complaint, or the names joined thereon, nor does the cross- complaint fall with the fall of the plain- tiff's complaint. Mott v. Mott, 82 Cal. 413; 22 Pac. 1140, 1142. Where issues are joined and trial had upon a second amended complaint, errors in rulings made upon the former complaints are imma- terial. Rooney V. Gray, 145 Cal. 753; 79 Pac. 523. The original complaint may be considered as a part of the record of the case, for the purpose of showing when the action was commenced, and whether or not a new or different cause of action was introduced by the amendment, and for the determination of other questions that may §473 MISTAKES IN PLEADINGS AND AMENDMENTS. 426 arise, which often become material on ap- peal; it is always included in the judg- ment roll. Eedington v. Cornwell, 90 Cal. 49; 27 Pac. 40; Collins v. Scott, 100 Cal. 446; 34 Pac. 1085. An amended complaint, stating no new cause of action, relates back to the time of the commencement of the action, for the purposes of the statute of limitations (Smullen v. Phillips, 92 Cal. 408; 28 Pac. 442; White v. Soto, 82 Cal. 654; 23 Pac. 210); it does not change the time of the running of the statute of limitations beyond the date of the filing of the original complaint, as against the original defendant; but it runs to the date of the amendment as against a grantee of the defendant, then for the first time made a party (Frost v. Witter, 132 Cal. 421; 84 Am. St. Rep. 53; 64 Pac. 705); and, though made after the expiration of the period of limitation for the action, relates back to the time of its commencement. Ruiz v. Santa Barbara Gas etc. Co., 164 Cal. 188; 128 Pac. 330. The findings need only refer to the complaint as amended. Whitehead V. Sweet, 126 Cal. 67; 58 Pac. 376. Where reference is made in a judgment to a find- ing, and in the finding to the complaint, which was amended, for a description of property, the reference, though inexcus- ably circuitous, is not ambiguous, and unmistakably refers to the amended com- plaint. Kelly V. McKibben, 54 Cal. 192. An error committed in overruling a de- murrer to the complaint is cured by a subsequent amendment to the complaint, although an action at law is changed into a suit in equity. Walsh v. McKeen, 75 Cal. 519; 17 Pac. 673. Unless new matter in- serted in an amended complaint is entirely foreign to the cause of action in the original complaint, the question will not arise, on motion to strike out, whether the amendments in the amended complaint go further than is allowed by the code: mat- ter contained in an amended complaint is not irrelevant or redundant to a cause of action set out in the original complaint in the same action. Nevada Countj^ etc. Canal Co. v. Kidd, 28 Cal. 673. An amended complaint, not allowed to be filed, cannot be considered as any part of the showing on which a temporary injunction was granted, and can only be considered in the light of a counter-affidavit, on a motion to dissolve the injunction. Meetz V. Mohr, 141 Cal. 667; 75 Pac. 298. An amendment as to a matter of substance opens up a default, and gives the defend- ant in default the right to appear and answer (Thompson v. Johnson, 60 Cal. 292); but an amended complaint which brings in new parties, in which a default- ing defendant is not interested, is not an amendment in matter of substance, and does not open up the default, nor re- quire the service of the amended complaint upon the defaulting party. San Diego Savings Bank v. Goodsell, 137 Cal. 420; 70 Pac. 299. A supplemental complaint is not an amendment to a pleading, as it leaves the former pleading intact; but an amend- ment to a pleading makes a substituted pleading. Giddings v. 76 Land and Water Co., 109 Cal. 116; 41 Pac. 788. An amended answer supersedes the original, and destroys its effect as a pleading (Gil- man V. Cosgrove, 22 Cal. 356; Welsh v. Bardshar, 137 Cal. 154; 69 Pac. 977; Evinger v. Moran, 14 Cal. App. 328; 112 Pac. 68) ; and all questions in relation to the abandoned answer are waived by filing the amended answer. Kentfield v. Hayes, 57 Cal. 409. An amended answer, improp- erly filed, and stricken out on motion, does not supersede the original answer, nor can the court render judgment against the defendant, in such a case, because there is no pleading on file; while an amended pleading supersedes the original, yet it must be a valid, subsisting pleading, en- titled to recognition as such, in the place and stead of that which it supersedes; if it is a usurper, and exists only until the court can strike it out of existence because it is void ab initio, it fills no such office, and it cannot be treated as void because filed without leave of the court. Spooner V. Cady, 4 Cal. Unrep. 539; 36 Pac. 104. Where an amended answer is filed pending- a motion for judgment upon the pleadings, such motion cannot be determined upon the original answer, but must depend upon the sufficiency of the amended answer. Evinger v. Moran, 14 Cal. App. 328; 112 Pac. 68. Correction of matters relating to bills of exceptions. Relief may be granted from a default in failing to comply with the statute in presenting a bill of exceptions (People v. Everett, 8 Cal. App. 430; 97 Pac. 175); or in failing to serve a proposed bill of exceptions within the prescribed time, where objection to the set- tlement is made on that ground. Dernham V. Bagley, 151 Cal. 216; 90 Pac, 543; Sauer V. Eagle Brewing Co., 3 Cal. App. 127; 84 Pac. 425; Pollitz v. Wickersham, 150 Cal. 238; 88 Pac. 911. The judge has no power to extend the time for the settlement of a bill of exceptions beyond thirty days, without the consent of the adverse partj^; nor can he grant an extension after the moving party has made default, where no excuse for delay is shown, or any other facts from which relief could be claimed, or any application made to obtain such relief. Cameron v. Areata etc. R. R. Co., 129 Cal. 279; 61 Pac. 955. A mistake of one day, by the plaintiff, in giving eleven days' notice of the presentation of a bill of exceptions for settlement, after the ser- vice of proposed amendments thereto, does not make the settlement thereof erroneous, where a proper case for relief, under this section, was established by affidavits, and by all the circumstances of the case, show- ing that the mistake was the result of 427 AMENDMENTS — JUDGMENTS — MOTION TO VACATE, ETC. §473 excusable inadvertence on the part of the plaintiff's attorney. Kaltschmidt v. Weber, 145 Cal. 596; 79 Pac. 272. A bill of excep- tions may be corrected (Merced Bank v. Price, 152 Cal. 697; 93 Pac. 866); but not after it is prepared and settled, pending an appeal; nor can the record be amended by the appellate court, which must review the order upon the same record upon which it was made. Baker v. Borello, 131 Cal. 615; 63 Pac. 914. An order scttlinj:^ a bill of exceptions on motion for a new trial may be vacated. Donnelly v. Tregaskis, 7 Cal. App. 317; 94 Pac. 383. A person con- victed of a felony is not entitled to notice of a proceeding by the state to correct an error in the bill of exceptions, where the course adopted is in full accord with the practice recognized b}^ this section, which does not require notice to be given of an application for the correction of a mistake in the record. People v. Southern, 118 Cal. 359; 50 Pac. 545. The supreme court will not attempt to control the action of the court below in refusing to settle a bill of exceptions: that is a matter within the discretion of the lower court, assuming that it has power to grant relief. Stone- sifer V. Armstrong, 86 Cal. 594; 25 Pac. 50. On appeal from an order refusing to grant relief from a default, in failing to serve a proposed statement on appeal within the prescribed time, the sole ques- tion to be considered is, whether the trial court abused its discretion in making such order. Utah-Nevada Co. v. De Lamar, 9 Cal. App. 759; 100 Pac. 884. Statement on motion for new trial or on appeal. Under § 68 of the Practice Act, the court had power to cancel the certifi- cate settling the statement on appeal, on becoming satisfied that the statement, as settled, was erroneous, and that the cer- tificate was made through inadvertence; provided the error was corrected, either during the term or within five months thereafter. Flynn v. Cottle, 47 Cal. 526. A statement on motion for new trial may be amended to speak the truth. Estate of Thomas, 155 Cal. 488; 101 Pac. 798. In the absence of any showing relieving a party from default in serving a statement on motion for a new trial, such statement cannot be considered on appeal. King v. Dugan, 150 Cal. 258; 88 Pac. 925. Motion to vacate, or motion for new trial. Where a motion for a new trial was brought up ex parte by opposing counsel, and, without argument or submission by the moving party, or opportunity to his counsel to be heard, was, by the court, inadvertently and improvidently denied, without consideration of the merits, the court has power, upon an ex parte showing, by the affidavit of the moving party, of facts showing inadvertence and improvi- dence, to vacate the order and to restore the motion to the calendar for argument. Whitney v. Superior Court, 147 Cal. 536; 82 Pac. 37. After the court has rendered judgment in accordance with its findings, neither the findings nor the judgment can be changeapers, and which is an amendment of a former application, will be so reganled for the purpose of determining the question of diligence. Wolff v. Canadian Pacific Ry. Co., 89 Cal. 332; 26 Pac. 825. Where there is a perfect affidavit of merits, and the default is properly excused, the judgment may be set aside, to permit the plea of discharge in insolvency or bankruptcy,, w^here the application contains a state- ment of discharge in iusolvencv. Tuttle V. Scott, 119 Cal.'5S6; 51 Pac. 849. Where the motion to vacate a judgment by de- fault is made on the ground that the court had no jurisdiction to render any judg- ment, by reason of failure to serve the summons, the question whether the facts stated in the application would constitute a defense to the action, is immaterial. Mott Iron Works v. West Coast Plumbing etc. Co., 113 Cal. 341; 45 Pac. 683. Where a defendant seeks relief, under this sec- tion, from a default judgment in an action to quiet title under the McEnerney Act, the affidavit on the motion, stating facts sufficient to show that the claimant had a "valid adverse interest" in the prop- erty involved in the action when it was begun, is sufficient. Davidson v. All Per- sons, 18 Cal. App. 723; 124 Pac. 570. Where the defendant has actual notice of the time and place of trial, and that no further postponement would be agreed to by the opposing party, and the case is tried in his absence, he is not entitled to have the judgment vacated and a new trial granted on the ground of accident and surprise. McGuire v. Drew, 83 Cal. 225; 23 Pac. 312. Where a motion for a new trial was denied on the ground that the moving affidavits were not filed in time, a subsequent motion to set aside the judgment, on the ground of excusable ne- glect, will also be denied, if sufficient rea- sons are not shown for the delay in filing the affidavits on the former motion. Heine V. Treadwell, 72 Cal. 217; 13 Pac. 503. Affidavit of merits. An affidavit of merits is required in proceedings for re- lief under this section (Nevada Bank v. Dresbach, 63 Cal. 324; Quan Quock Fong V. Lyons, 20 Cal. App. 668; 130 Pac. 33); and the defendant must show that he has a good defense to the action on the merits. People V. Eains, 23 Cal. 127; Grav v. Law- lor, 151 Cal. 352; 12 Ann. Cas. 990; 90 Pac. 691. Where no affidavit of merits is made, an explanation should be given. Bailey v. Taaffe, 29 Cal. 422. In the absence of a showing of merits, relief will be denied.. MISTAKES IN PLEADINGS AND AMENDMENTS. 434 Eeese v. Mahoney, 21 Cal. 305; Bailey v. Taafe, 29 Cal. 422; Parrott v. Den, 34 Cal. 79. No affidavit of merits is necessary on a motion to vacate a judgment rendered upon an invalid stipulation (Toy v. Has- kell, 128 Cal. 558; 79 Am. St. Rep. 70; 61 Pac. 89); nor on a motion to set aside a judgment, entered upon a fraudulent stipu- lation, where the record shows that there is a meritorious defense (Crescent Canal Co. V. Montgomery, 124 Cal. 134; 56 Pac. 797); nor on a motion to vacate a judg- ment based upon want of jurisdiction of the person (Maclay Co. v. Meads, 14 Cal. App. 363; 112 Pac. 195; 113 Pac. 364); nor on a motion to set aside a decree in a divorce suit (Cottrell v. Cottrell, S3 Cal. 457; 23 Pac. 531); nor where the judg- ment shows upon its face that it was im- providently made (Clarke v. Baird, 98 Cal. 642-, 33 Pac. 756) ; nor where the judg- ment is void: in this class of cases the defendant is entitled to relief, indepen- dently of the statute. Norton v. Atchison etc. R. R. Co., 97 Cal. 388; 33 Am. St. Rep. 198; 30 Pac. 585; 32 Pac. 452. The court may grant leave to the defendant to amend his affidavit, and to file the same. Palmer V. Barclay, 92 Cal. 199; 28 Pac. 226. The affidavit cannot be controverted (Reclama- tion District v. Coghill, 56 Cal. 607) ; nor can counter-affidavits be received (Francis V. Cox, 33 Cal. 323; Gracier v. Weir, 45 Cal. 53) ; nor can the merits of the case be tried (Rauer's Law etc. Co. v. Gilleran, 138 Cal. 352; 71 Pac. 445); but where the court deems further affidavits necessary, the hearing may be continued for that purpose. Melde v. Re.ynolds, 129 Cal. 308; 61 Pac. 932. Where the affidavit is insuffi- cient, the court should not set aside the judgment; it has no authority to waive a proper affidavit. Morgan v. McDonald, 70 Cal. 32; 11 Pac. 350. A verified answer is a sufficient showing of merits. Fulweiler V. Hog's Back Consol. Mining Co., 83 Cal. 126; 23 Pac. 65. The affidavit may be made by counsel, where the defendant is ignorant, and unacquainted with modes of judicial proceedings (Byrne v. Alas, 68 Cal. 479; 9 Pac. 850); and it is not objec- tionable because made by an attorney. Will V. Lytle Creek Water Co., 100 Cal. 344; 34 Pac. 830. A personal affidavit is not jurisdictional. Melde v. Reynolds, 129 Cal. 308; 61 Pac. 932. The affidavit must state that the defendant has fully and fairly stated the facts of the case to his counsel: a statement that he has stated the facts of his defense to counsel is insuffi- cient (Morgan v. McDonald, 70 Cal. 32; 11 Pac. 350) ; and it is also insufficient, that he stated "his case" to his counsel (People v. Larue, 66 Cal. 235; 5 Pac. 127); and that he had fully and fairly stated to counsel all the facts constituting the defense (Palmer & Rey v. Barclay, 92 Cal. 199; 28 Pac. 226); and that lie had fairly and fully stated "all the facts" to his counsel. Jensen v. Dorr, 9 Cal. App. 19; 98 Pac. 46. It is not essential that the affidavit disclose facts constituting a defense. Rauer's Law etc. Co. v. Gilleran, loS Cal. 352; 71 Pac. 445; Woodward v. Backus, 20 Cal. 137; Francis v. Cox, 33 Cal. 323; Reidy v. Scott, 53 Cal. 69. The rule that a party moving to vacate a judgment by default cannot be deprived of relief be- cause the affidavit is overcome by counter- affidavits, does not apply where no case of inadvertence or excusable neglect is shown. Bond v. Karma-Ajax Consol. Min- ing Co., 15 Cal. App. 469; 115 Pac. 254. Where the affidavit is materially deficient in showing that the default occurred through mistake, inadvertence, surprise, or excusable neglect, or that the defendant has a meritorious defense to the action, the judgment should not be vacated. Bailey v. Taaffe, 29 Cal. 422. An affida- vit showing that the defense is of a tech- nical character, not aifecting the merits of the case, is insufficient (People v. Rains, 23 Cal. 127); as is also an affidavit stating facts that would not constitute a defense to the action upon the merits (Tuttle v. Scott, 119 Cal. 586; 51 Pac. 849); and an affidavit containing no averment of mis- take, inadvertence, surprise, or any at- tempt to account for failure to answer within the time allowed by law, where personal service of summons was made (Harlan v. Smith, 6 Cal. 173); and an affidavit, that the affiant was fully advised of the facts and circumstances involved in the defense. Quan Quock Fong v. Lyons 20 Cal. App. 668; 130 Pac. 33. Where the affidavit discloses a degree of negligence carelessness, and lack of diligence, hardly to be expected of a prudent business man the application should be denied. Coleman V. Rankin, 37 Cal. 247; Wolff & Co. v Canadian Pacific Ry., 89 Cal. 332; 26 Pac 825. An affidavit by the defendant's at torney, that he has examined the defend ant's title, and verily believes, from such examination, that it is better than the plaintiff's, does not show a meritorious defense. Bailey v. Taaffe, 29 Cal. 422. The default should be set aside, where there is a sufficient affidavit, and the facts, if proved, would constitute a meritorious defense. Reidv v. Scott, 53 Cal. 69; Burns v. Seooffy, 98 Cal. 271; 33 Pac. 86. Where a foreign corporation failed to designate an agent in this state, and no service by publication was made, but a substituted service upon the secretary' of state, a motion to vacate a judgment by default against such coriioration must be denied, where there is no showing of a meritorious defense to the action, and the defendant does not ask to be allowed to come in and make such defense. Olender v. Crvstalline Mining Co., 149 Cal. 482; 86 Pac. 1082. The statute of limitations is a defense on the merits, which may be set up after a default has been vacated (Lilly-Brackett jC'o. v. Sonnemanu, 157 Cal. 192; 21 Ann. Cas. 1279; 106 Pac. 715); and where the 435 ATTORNEYS — MISTAKE OR NEGLECT OF — VOID JUDGMENTS. §473 bar of the statute is plea<1ed as a defense, that is a sufficient answer to the merits to justify the opening of a default. San Diego Realty Co. v. McGinn, 7 Cal. App. -264; 94 Pac. 374. Mistake or neglect of attorney. Judg- ment by default may be sot aside on ac- count of the mistake, inadvertence, or excusable neglect of the attorney (O'Brien V. Leach, 139 Cal. 220; 96 Am. St. Rep. 105; 72 Pac. 1004); but an attorney's igno- rance of the limit of the court's power to extend time is inexcusable neglect. Utah- Nevada Co. V. De Lamar, 9 Cal. App. 759; 100 Pac. 884. Ignorance of the law re- quiring an answer to be filed within ten days is no ground for setting aside a judg- ment by default. Chase v. Swain, 9 Cal. 130. Because more time was required to prepare the answer than in ordinary cases, and because the defendant's attorney was compelled to be absent during a part of the time, are not good grounds for setting aside a judgment by default. Bailey v. Taaffe, 29 Cal. 422.' A judgment by de- fault cannot be set aside upon a mere abstract allegation of the attorney's in- advertence in drafting, serving, or filing the answer: reasons, causes, and excuses for inadvertence, must be stated; and a judgment by default should not be va- cated, merely on the ground of the attor- ney's mistake in believing that the service of notice of the overruling of the demurrer to the complaint was unauthorized by law. Shearman v. Jorgensen, 106 Cal. 483; 39 Pac. 863. There is no abuse of discretion in setting aside a judgment by default, where the attorney was mistaken, owing to an -error of his clerk, as to the time the case was set for trial, and did not appear (Dougherty v. Nevada Bank, 68 Cal. 275; 9 Pac. 112) ; nor where the plaintiff's at- torney resided at a considerable distance from the place of trial, and he had reason to believe that the case would not be trielaiutiff could have ascertained his true nam© by examining the records of the countv. Irving v. Carpentier, 7U Cal. 23; 11 Fa'c. 391. Allegation of ignorance of defendant's true name. A party, sued and served with summons under a fictitious name, though not named as a defeudant, is entitled to have such service set aside and to have the action dismissed, as against him, where there is no averment that the plaintiff did not know the true name of the person in- tended to be made a defendant, which might easily have been learned. Rosen- crantz v. Rogers, 40 Cal. 489. Parties sued under fictitious names, where the comi)laiut does not show who are intended to be sued, are not affected by the judgment. Ford v. Doyle, 37 Cal. 346; People v. Herman, 45 Cal. 689. In an action to annul a cer- tificate of purchase of state lands, where there is no allegation that the name of the holder is unknown, there is no founda- tion for bringing an action against a fictitious person, and no authority to make service of summons by publication. Peo- ple v. Herman, 45 Cal. 689. Where the fact that the true name of a defendant, sued under a fictitious name, was unknown, is alleged in the complaint, followed by a prayer that, when discovered, the com- plaint might be arhended to allege his true name, and an injunction followed the com- plaint, directed to and served upon the defendant under a fictitious name, and in the affidavit for a w^rit of attachment the defendant was described as the person served with the injunction, and at the hearing the court found the true name of the defendant, and so stated it in the judgment, this is sufficient. Ex parte Ah Men, 77 Cal. 198; 11 Am. St. Rep. 263; 19 Pac. 380. A plaintiff's allegation, that he is ignorant of the name of a defendant su«d under a fictitious name, is not traver- sable, either by the answer or in any other mode. Irving v. Carpentier, 70 Cal. 23; 11 Pac. 391. Amendment of complaint. By § 39 of the Practice Act it was provided that the complaint should contain the names of the parties to the action, plaintiff and defend- ant; and it was held that there was no conflict between § 39 and § 69; the former gave the general rule, and the latter pro- vided an exception to it. Rosencrantz v. Rogers, 40 Cal. 489. By § 69 of the Prac- tice Act it w^as provided that when the true name of the defendant was discov- ered the pleading might be amended, where it was intended that the judgment should bind persons sued by fictitious names: there is as little room for question that such was the proper course as there would be where the plaintiff discovers that, by mistake, he has sued the defendant by a wrong name. McKinlay v. Tuttlc, 42 Cal. 57U. No judgment can be taken and en- forced against a party, sued under a fictitious name, where the complaint is not amended by inserting his true name when ascertained. Farris v. Merritt, 03 Cal. 118. The complaint must be amended by in- serting the true names, wlien ascertained, of parties sued under fictitious names, either before or after service of process, so as to allege that they are the persons to be bound by the judgment. McKinlay V. Tuttle, 42 Cal. 570; Campbell v. Adams, 50 Cal. 203; Baldwin v. Morgan, 50 Cal. 585; Farris v. Merritt, 63 Cal. 118. A defendant, sued and served under a ficti- tious name, who appears and answers, does not thereby waive an amendment to the complaint, describing him by his true name. McKinlay v. Tuttle, 42 Cal. 570. An amendment of the complaint, inserting the defendant's true name, when sued un- der a fictitious name, does not change the cause of action. Farris v. Merritt, 63 Cal. 118. Service of amended complaint. Where the complaint is amended when the case comes up for trial, by inserting the true name of a defendant sued under a fictitious name, service of the amended complaint is not required to be made on him, nor is he entitled to ten days in which to answer. Brock V. Martinovich, 55 Cal. 516. Validity of judgment, where name is fictitious. A judgment by default, against a defendant sued under a wrong name, is not void, where he was served with pro- cess. Welsh v. Kirkpatrick, 30 Cal. 202; 89 Am. Dec. 85. Where a party, sued and served under a fictitious name, answers, the judgment against him is not voiil, and cannot be attacked collaterally, though the complaiut was not amended by insert- ing his true name. Campbell v. Adams, 50 Cal. 203; Baldwin v. Morgan, 50 Cal. 585. Where a company, sued under a wrong name, answers, and judgment is rendered against it under its true name, the supreme court will, on appeal, direct the complaint to be amended, as of a date anterior to the judgment, by substituting the true name. Mahon v. San Rafael Turnpike Road Co., 49 Cal. 269. A judgment against a party sued under a fictitious name will not be reversed on appeal, but, in order to sup- port the judgment, the lower court will be directed to amend the complaint as of a date ])rior to the judgment (Alameda County V. Crocker, 125 Cal. 101; 57 Pac. 766; Baldwin v. Bornheimer, 48 Cal. 433; Blackburn v. Bucksport etc. R. R. Co., 7 Cal. App. 649; 95 Pac. 668); but such a judgment was reversed in McKinlay v. Tuttle, 42 Cal. 570; San Francisco v. Burr, 4 Cal. Unrep. 631; 36 Pac. 771. Where a defendant is sued under a fictitious name, but is served under his true name, the omission to amend the complaint by sub- §475 MISTAKES IN PLEADINGS AND AMENDMENTS. 454 stituting his true name is an irregularity for which the decree will be reversed; but the judgment is not void, nor can it be attacked collaterally. Baldwin v. Morgan, 50 Cal. 585. Where a party defendant is sued and answers under a wrong name, and judgment is entered against him accord- ingly, no advantage can be taken of the misnomer. McCreery v. Everding, 54 Cal. 168. Method of pleading misnomer. A plea in abatement was formerly the proper way to raise the objection of misnomer; and the question whether a defendant has been sued under his proper name is probably nothing more than matter in abatement, and is analogous to the case of a mis- nomer, which never renders a judgment void. Welsh v. Kirkpatrick, 30 Cal. 202; 89 Am. Dec. 85. CODE COMMISSIONERS' NOTE. The words, "he must state that fact in the complaint," are added to the original section, so that it may ap- pear upon the face of the proceedings that the name is a fictitious one. See, generally, Rosen- crantz v. Rogers, 40 Cal. 491; Morgan v. Thrift, 2 Cal. 562. § 475. No error or defect to be regarded unless it affects substantial rights. The court must, in ever}^ stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was preju- dicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, 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. Similar provision. Pen. Code, §§ 1258, 1404. Legislation § 475. 1. Enacted March 11, 1873; based on Practice Act, § 71 (New York Code, § 176), which read: "The court shall, in every stage of an action, disregard any error or defect in the pleadings, or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by rea- son of such error or defect." When enacted in 1872, (1) the word "shall," after "The court," was changed to "must," and (2) the same_ word, before "not affect," was changed to "does." 3. Amended by Stats. 1S97, p. 44. Construction of section. This section applies to immaterial errors or defects in the statement of an election contest (Chatham v. Mansfield, 1 Cal. App. 298; 82 Pac. 343), and also to those in the form of a judgment (Sherwood v. Wallin, 1 Cal. App. 532; 82 Pac. 566), and to those in rendering a judgment against a wife alone, in a joint action against her and her hus- band (McKee v. Cunningham, 2 Cal. App. 684; 84 Pac. 260), and to those in holding a decree to be valid. Fogg v. Perris Irri- gation Dist., 154 Cal. 209; 97 Pac. 316. Substantial injury necessary. A judg- ment will not be reversed, unless the com- plaining party has suffered substantial injury. Bird v. Utica Gold Mining Co., 2 Cal. App. 674; 84 Pac. 256; Block v. Kearney, 6 Cal. Unrep. 660; 64 Pac. 267; Bollinger v. Bollinger, 154 Cal. 695; 99 Pac. 196; Compressed Air etc. Co. v. West San Pablo Land etc. Co., 9 Cal. App. 361; 99 Pac. 531; Preston v. Central California etc. Irrigation Co., 11 Cal. App. 190; 104 Pac 462; Bradley v. Bush, 11 Cal. App. 287; 104 Pac. 845; Peters v. Peters, 15G Cal. 32; 23 L. E. A. (N. S.) 699; 103 Pac. 219; Fogg v. Perris Irrigation Dist., 1j4 Cal. 209; 97 Pac. 316; Dennis v. Crocker- Huflfman Land etc. Co., 6 Cal. App. 58; 91 Pac. 425. Error without prejudice is not a ground for reversal. Reynolds v. Lin- coln, 71 Cal. 183; 9 Pac. 176; 12 Pac. 449; Allen V. McKay, 139 Cal. 94; 72 Pac. 713. A judgment will not be reversed for a mere technical error of law, which, after the case has been tried, is of too little consequence to be, in any substantial sense, a prejudicial error: such error, unaccom- panied by injury, will be disregarded on appeal. Sloaue v. Southern California Ry. Co., Ill Cal. 668; 32 L. E. A. 193; 44 Pac. 320; Baker v. Southern California Ry. Co., 114 Cal. 501; 46 Pac. 604; Smith v. Smith, 119 Cal. 183; 48 Pac. 730, 51 Pac. 183; Hirshfeld v. Weill, 121 Cal. 13; 53 Pac. 402; Holland v. McDade, 125 Cal. 353; 58 Pac. 9; Stephenson v. Deuel, 125 Ca2 656; 58 Pac. 258; Foerst v. Kelso, 131 Cal. 376; 63 Pac. 681. Errors not affecting the substantial rights of the parties may be disregarded (Gassen v. Bower, 72 Cal. 555; 14 Pac. 206); they are unavailing on ap- peal, even when the subject of exception, and much less so when permitted without exception. Paige v. O'Neal, 12 Cal. 483. When a case has been tried and judgment rendered on the facts, it must appear that some substantial right of a party has been affected, or some prejudicial error, as dis- tinguished from an abstract error, suffere(l by him, in order to warrant a reversal. Eooney v. Gray Bros., 145 Cal. 753; 79 455 JUDGMENTS — REVERSAL INJURY, WHAT NECESSARY. §475 Pac. 523. A misnomer iu entitling the name of the court, on the face of the com- plaint only, is a defect not affecting the substantial rights of the defendant. Ex parte Fil Ki, 79 Cal. 584; 21 Pac. 974. Where the substantial rights of the par- ties have not been affected by a misjoinder of causes of action, a judgment, rendered after the trial of the case upon its merits, should not be reversed because the court overruled the demurrer for such mis- joinder. Eeynolds v. Lincoln, 71 Cal. 183; 9 Pac. 176; 12 Pac. 449; Asevado v. Orr, 100 Cal. 293; 34 Pac. 777; Hirshfeld v. Weill, 121 Cal. 13; 53 Pac. 402. A judg- ment should not be reversed because of an alleged error or defect in the summons, which is claimed not to state the cause and general nature of the action, where such error or defect is more technical than real. King v. Blood, 41 Cal. 314. A judg- ment, otherwise valid, will not be reversed, merely because the action is brought in the name of a reclamation district, instead of in the name of the people; the real party in interest being the reclamation dis- trict. Reclamation District v. Hagar, 66 Cal. 54; 4 Pac. 945. An error of the superior court in vacating a void order made by a justice of the peace, is a harm- less error. Baird v. Justice's Court, 11 Cal. App. 439; 105 Pac. 259. Where the complaint alleged that the defendant was indebted to the plaintiff therein in the sums "hereinbefore" stated, but in the copy of the complaint served on the de- fendant with the copy of the summons the word "hereinbefore" was written "herein- after," the variance is immaterial: it could not have misled the defendant nor have affected his substantial rights. Fraser v. Oakdale Lumber etc. Co., 73 Cal. 187; 14 Pac. 829. Harmless error in giving in- structions is no ground for reversal of judgment. Los Angeles Cemetery Ass'n v. Los Angeles, 103 Cal. 461; 37 Pac. 375; Chapell V. Schmidt, 104 Cal. 511; 38 Pac. 892; People v. Stanton, 106 Cal. 139; 39 Pac. 525; Baker v. Borello, 131 Cal. 615; 63 Pac. 914; Dunlap v. Plummer, 1 Cal. App. 426; 82 Pac. 445. Where dates in the complaint and in the finding are erro- neous, they should be corrected by amend- ment; but where they are harmless, the judgment will not be reversed because thereof. Thomas v. Jameson, 77 Cal. 91; 19 Pac. 177. Where, before judgment, de- livery of property sought to be recovered is made to the plaintiff, a judgment in favor of the plaintiff for its possession is not void or erroneous because not in the alternative, and cannot be reversed. Clau- dius V. Aguirre, 89 Cal. 501; 26 Pac. 1077. The sufficiency of a notice is not impaired by its being directed to the attorneys for the "executor," where there were three executors; the amendment, in such case, follows as a matter of course. Estate of Nelson, 128 Cal. 242; 60 Pac. 772. Where an amender of arrost is discretionary with the judge. Knickerbocker Life Ins. Co. v. Kcclesine, G -Abb. Pr. (N. S.) 9; Davis v. Scott. 15 Abb. Pr. 127; Lapeoug v. Hart, 9 How. Pr. 541. § 480. Order for arrest, by whom made. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought. Legislations 480. 1, Enacted March 11, 1872; based on Practice Act, § 74 (New York Code, § 180), which had the word "shall," instead of "must." 2. Amended by Code Amdts. 1880, p. 3, omit- ting from the end ckf the section, after "brought," the words "or from a county judge." § 481. Affidavit to obtain order, what to contain. Tlio order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a suf^cient cause of action exists, and that the case is one of those mentioned in section four hundred and seventy-nine. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the informa- tion and belief are founded. If an order of arrest be made, the affidavit must be filed with the clerk of the court. fendant was guilty of fraud either in pro- curing the property involved in the action, or in withholding the purchase-money re- Legislation 8 481. 1. Enacted March 11, 1872; based on Practice Act, § 75 (New York Code, § 181), which had (1) the words "shall appear'| instead of "appears," and (2) the word "shall" instead of "must" wherever these words appear. 3. Amended by Code Amdts. 1873-74, p. 305, changing, at the end of the section, the word "court" from "county." Sufficiency of affidavit. That it may "ap- pear" to the judge, it is necessary that the facts shall be stated by competent evi- dence; but it is competent to present them bv affidavit. Neves v. Costa, 5 Cal. App. lil; 89 Pac. 860. The arrest upon affidavit is intended merely to secure the presence of the defendant until final .iudgment; and in order to detain and imprison his person afterwards, the fraud must be alleged in the complaint, be passed upon by the jury, and be stated in the judgment. Davis v. Robinson, 10 Cal. 411. The jurisdiction to issue an order of arrest depends upon the affidavit required by this section (Ex parte Howitz, 2 Cal. App. 752; 84 Pac. 229; Neves v. Costa, 5 Cal. App. Ill; 89 Pac. 860); and an insufficient affidavit makes the order of arrest void: a warrant issued thereunder does not authorize the deten- tion of the defendant. Ex parte Fknnioto, 120 Cal. 316; 52 Pac. 726. The affidavit must disclose that a suffieient cause of ac- tion exists, and that the case is one of those for which the remedy of arrest is provided (McGilvery v. Morchead, 2 Cal. 607); and that the case is one mentioned in § 479, ante (Neves v. Costa, 5 Cal. App. Ill; 89 Pac. 860); and the power of the court is limited to the facts and conditions which are made to appear therein. Lay v. Superior Court, 11 Cal. App. 5.j8; 105 Pac. 775. A party is entitled to an order of arrest, where the circumstances detailed would induce in a reasonable mind the be- lief that a fraud was intended to be per- petrated: it is not necessary that he should show positively the commission of a fraud (Southworth v. Resing, 3 Cal. 377); but circumstances must be disclosed from which an inference can be drawn that the de- ceived from the sale thereof, as the agent for the plaintiff. In re Holdforth, 1 Cal. 438. As a matter of practice, it is safest to order an arrest, even in cases of doubt, because the defendant is protected against abuse of the process by the undertaking of the plaintiff, while, on the other hand, frauds are proverbially concocted with so much artfulness 'and ingenuity as to ren- der them at all times difficult to be ex- posed; and when a case actually exists, the plaintiff is remediless without process of arrest: a different rule would almost, if not certainly, destroy its efficiency as a legal remedy. Southworth v. Resing, 3 Cal. 377. The facts necessary to be shown must ap- pear by the positive averments of the affi- davit: a reference to the complaint, or to any other paper, to show what the affidavit itself should disclose, although it is posi- tively averred that such complaint or paper is true, is insufficient. McGilvery v. More- head, 2 Cal. 607; Ex parte Fkumoto, 120 Cal. 316; 52 Pac. 726. It is not enough to assert a fraudulent intent in general terms: the specific facts must be shown, that the court itself may deduce the fraud, and the question of sufficiency not left to be passed upon by the party. Ex parte Fkumoto, 120 Cal. 316; 52 Pac. 726. The affidavit may be based on information and belief (Ma- toon v. Eder, 6 Cal. 57); but statements of fact, made upon information and belief, or which are of such a character that they could only be so made, without stating the facts upon which such information and belief are founded, are fatally defective. Ex parte Fkumoto, 120 Cal. 3*^16; 52 Pac. 726. The court has no jurisdiction to make an order for arrest, where the affidavit does not aver that the indebtedness sued for, or any other cause of action, exists: sucli an affidavit is fatally defective (In re Vinich, 86 Cal. 70; 26 Pac. 52S); and where there M82 ARREST AND BAIL. 468 is a total defect of evidence as to any es- sential fact in the affidavit, the court acts without any jurisdiction, and the act is void; but where the court has jurisdiction, and makes a mistake concerning the just weight and importance of the evidence, the act is merely erroneous, and is good until reversed. Dusy v. Helm, 59 Cal. 188. The presentation of such evidence, as, alone, would be receivable upon the trial of an action to justify an ordinary judgment for money, is required of a plaintiff who de- sires, in a civil action, to enforce his claim, at the outset, by the arrest and imprison- ment of the defendant, that is. to have execution before obtaining judgment. Ex parte Fkumoto, 12(1 Cal. ;;ili; .ii: Pac 72ii. Where the judge has no jurisdiction to act, his order of arrest is void; and whether he has jurisdiction, must be determined from the affidavit itself, and not from what the judge thinks it authorizes him to do; the court cannot confer jurisdiction by merely assuming it, nor can its determination that it has jurisdiction confer it; and the plain- tiff must see to it that he is clothed with actual, not merely apparent, authority, be- fore he can deprive the defendant of his liberty. Fkumoto v. Marsh, 130 Cal. 66; 80 Am. St. Eep. 73; 62 Pac. 303, 509. An averment that goods were carried away in an express wagon, to a place unknown to the plaintiff, is not sufficient to show a fraudulent purpose: they may have been thus taken for sale or storage, in perfect good faith. Ex parte Fkumoto, 120 Cal. 316; 52 Pac. 726. That the defendant "will escape from the state," etc., is a mere statement of the conclusion or belief of the affiant, and, without the statement of the facts from which such conclusion is drawn, or upon which such belief is founded, is not evidence upon which the court is at liberty to act. Id. Tnat the defendant "will escape from the state," and thus "de- fraud and cheat the plaintiff," is not the equivalent of the statutory requirement, "that he is about to depart from the state, with intent to defraud his creditors": when the language of such a statute is departed from, the party must, at his peril, employ § 482. Security by plaintiff before order of arrest. Before making the order, the judge must require a written undertaking on the part 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. words of equivalent import, and a failure in this respect is fatal. Id. New affidavits. Where a party is once arrested and discharged, he cannot be ar- rested again in the same action; and it be- ing always presumed that the plaintiff, in his affidavit for arrest, states his ease as fully as he can to effect his object, new or different affidavits cannot bo allowed at pleasure: a different rule would lead to har- assing arrests, and open a wide door to perjury. McGilvery v. Morehead, 2 Cal. 607. Objection to affidavit. Objection to the insufficiency of the affidavit cannot be set up by third parties, nor even by the de- fendant himself after judgment: by put- ting in bail and neglecting to move to be discharged, he consents to process, and waives all irregularities. Matoon v. Eder, 6 Cal. 57. CODE COMMISSIONERS' NOTE. 1. Affidavit. The affidavit must show the facts relied upon by positive averment ; and it is not sufficient to refer to the complaint, or to any other paper, to show what the affidavit ought itself to disclose. Mc- Gilvery V. Morehead, 2 Cal. 607. To entitle a party to the remedy of arrest, it is not necessary to show positively the commission of a fraud. It is sufficient if the circumstances detailed would induce a reasonable belief that a fraud was in- tended. Southworth v. Resinp, 3 Cal. 377. An affidavit for arrest, made on information and be- lief, that the defendant has been guilty of fraud in contracting the debt, or in endeavoring to pre- vent its collection, in the terms required by stat- ute, and followed by an averment of the facts on which the belief is founded, also stated on infor- mation and belief, is sufficient. Matoon v. Eder, 6 Cal. 57; City Bank v. Lumley, 28 How. Pr. 397; Blason v. Bruno, 21 How. Pr. 112; 12 Abb. Pr. 265; 38 Barb. 520; Cook v. Roach, 21 How. Pr. 152; Peel v. Elliott. 16 How. Pr. 481. In- sufficiency of the affidavit on which the writ of arrest issues cannot be set up in defense by third parties, nor by the defendant himself after judg- ment. Matoon v. Eder, 6 Cal. 57. 2. Order of arrest. The order of arrest is only an intermediate remedy or process to secure the presence of the party until final judgment, and the facts on which it is based must be affirma- tively found, and the fraud stated in the judg- ment, in order to authorize an arrest on final process. Matoon v. Eder, 6 Cal. 57. It is best to award an arrest even in cases of doubt, for the defendant is protected by his bond from abuse by the process, without which process the plain- tiff may be remediless. Southworth v. Resing, 3 Cal. 377; see also Davis v. Robinson, 10 Cal. 411. Undertakings. 1. Generally. Post. § lii.")(i. 2. Court commissioner's power Ante. § 259. to take. Legislation g 482. 1. Enacted March 11, 1873; baKr-c] on I'ractici- Act, § 70 (New York Code, § 182}, which read: "Before making the order, the judge shall require a written undertaking oi tliH part of the plaintiflf, with sureties, to the cfTert that if the defendant recover judgment, the idaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sura specified in the undertak- ing, which shall be at least five hundred dollars. 469 ORDER FOR ARREST — SURETIES — DUTY OF SHERIFF. §§483-485 Each of the surftics shall annex to the undertak- ing an affidavit that he is a resident and house- holder, or freeholder, within the state, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The under- taking shall be liled with the clerk of the court." When enacted in 1872, (1) the word "shall" was changed to "must," wherever it occurs, and (2) the sentence beginning "Each of the sureties" •was omitted. 2. Amended by Code Amdts. 1873-74, p. 305. Damages for wrongfully procuring ar- rest. Daiiinges for wroiigt'nlly securiiiff the arrest of a defemlant siioulil not be im- posed on the party applying for the order, ■where the .iudge to whom the application ■was made had jurisdiction to pass upon the BufRciency of the evidence disclosed by the affidavit, unless there was an entire lack of evidence of some essential fact which the law requires to be shown. Dusv v. Helm, -59Cal. 188. Action on undertaking in justice's court. A defendant, arrested in an action in a § justice's court, and subsequently dis- charged, cannot maintain an action on the undertaking given to procure his arrest, jjending an appeal by the plaintiff to the superior court from the judgment of the justice. Stechhan v. Koraback, 67 Cal. 29; 7 Pac. 7. CODE COMMISSIONERS' NOTE. The form of aflidavit of the sureties is omiltid. Section 1057 of this code prescribes the form to be used when- ever an undertaking is reciuired. The undertaking may be executed by any person, at the instance of the plaiiitilT, who will undertake unqualifiedly that the plaintiff will indemnify the defendant for all damages he may sustain. Lefhngwell v. Chave, 19 How. Pr. 54; 10 Abb. Pr. 472; 5 Bosw. 70.'J; Bellinger v. Gardner, 2 Abb. Pr. 441; Askins v. Ilearns, 3 Abb. Pr. 184. Per contra, Richardson v. Craig, 1 Duer, 666. If a foreign state is plaintiff, the undertaking may be signed by the resident minister. Republic of Mexico V. Arangoiz, 5 Duer, 634. The obliga- tions of sureties are assumed with reference to the law, which becomes part of their contract. Matoon v. Eder, 6 Cal. 57. 483. Order, when made, and its form. The order may be made at the time of the issuing of the summons, or any time afterwards before judtrment. 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. Legislation § 483. Enacted March 11, 1873; ■based on Practice Act, § 77 (New York Code, § 183), which had (1) the words "to accompany" instead of "at the time of the issuing of," and (2) the word "shall" instead of "must" before "'require." Order before action commenced. Until suit is instituted, there can be no defend- ant, and consequently no authority to issue an order of arrest; such an order, issued before action commenced, is void for want of jurisdiction. Ex parte Cohen, 6 Cal. 318. Arrest on final process. See note ante, §479. CODE COMMISSIONERS' NOTE. 1. "Before judgment." These terms mean "the final de- termination of the rights of the parties in the action." Although a judgment by default has been taken, founded upon allegations of fraud, and the defendant let in to defend the judgment standing as security, yet he may be arrested and held to bail in the action. Union Bank v. Mott, 8 Abb. Pr. 150; Mott v. Union Bank, 35 How. Pr. 332; 38 N. Y. 18; 4 Abb. Pr. (X. S.) 270. 2. Form of order. There is but one form under the code, and every order must require the officer to arrest the defendant, and hold him to bail in a specified sum. Tracy v. Veeder, 35 How. Pr. 209; but see Elston v. Potter. 9 Bosw. 635; Sherlock v. Sherlock, 7 Abb. Pr. (X. S.) 22. 3. Return. If the order direct the return within "five days after the arrest of the defend- ant," it is sufficient. Continental Bank v. De Mott, 8 Bosw. 696. If the order is made return- able on Sunday, the irregularity may be remedied either by waiver, as the putting in of bail (Wright v. Jeffrey, 5 Cow. 15), or by amendment. Stone V. Martin, 2 Denio, 185. § 484. Affidavit and order to be delivered to the sheriff, and copy to defendant. The order of arrest, with a copy of the affidavit upon which it is made, must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. To excuse omission of duty by sheriff, direction by party or attorney must be in writing. Pol. Code, § 4166. Legislation § 484. Enacted March 11. 1873; based on I'ractice Act, § 78 (Xew York Code § 184), which had (1) the word "shall" instead of "must," in both instances, and (2) the word "the" instead of "a," after the words "deliver to him." CODE COMMISSIONERS' NOTE. If the copies are not delivered by the sheriff, upon mak- ing the arrest, it is an irregularity only, and will not entitle the defendant to a discharge. Barker V. Cook, 25 How. Pr. 190; 16 Abb. Pr. 83; Courter v. McXamara, 9 How. Pr. 255; Keeler V. Belts, 3 Code Rep. 183. An omission, in the copy of the affidavit served, of the jurat and signature of the party, does not affect the valid- ity of the order. Barker v. Cook, 25 How. Pr. 190; 16 Abb. Pr. 83; 40 Barb. 254. § 485. Arrest, how made. The sheriff must execute the order by arrest- in" the defendant and keeping him in custody until discharged by law. Production of procesg upon request. i 4169. Pol. Code, Legislation S 485. Enacted March 11, 1872! based on Practice Act, § 79 (Xew York Cod-', §§ 486-489 ARREST AND BAIL. 470 § 185), which had the word "shall" instead of cannot be arrested again in the same ae- "mist." tion. McGilvery v. Morehead, 2 Cal. 607. No second arrest in same action. Where pj^^^ ^^^^^ order of arrest in civil action may a party is once arrested and discharged, he be executed. See note Ann. Cas. 1912B, 1376. § 486. Defendant to be discharged on bail or deposit. The defendant, at any time before execution, must be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest.. Legislation § 486. Enacted March 11, 1872; action, does not, per se, operate to dis- based on Practice Act § 80 (New York Code charge the defendant; the latter's interest. § 186), which had (1) the word shall instead .•" ^ ii,j.i-i_j- -i-j^ -i-u of "must," and (2) at the end of the section, being, merely, that he be furnished with, after "arrest," the words "as provided in this proper support while in custody, whether' chapter." paij for by the plaintiff or not. Ex parte- Discharge of defendant. A party ar- Lamson, 50 Cal. 306. rested may be relieved therefrom by de- code COBIMISSIONERS' NOTE. 1. Release.. posit or bail, or by moving upon affidavit The attorney for plaintiff may consent to the re- tO be discharged; and should the court re- lease of the defendant; but such a release will J. iTii- 1111 li. not discharge the order, and the defendant may fuse to discharge him, or should he neglect thereafter be arrested on final process. Meech v.. to applv for such discharge, he does not Loomis, 28 How. Pr. 209; 14 Abb. Pr. 428. waive all right and confess such fraud. 2. Sheriff must accept bail. The defendant is- Tvr-i* r. ^ T? la R Pnl ' " entitled to his discharge upon tendering bond, luaioon \. r..aer, O ^,ai. Ol. ^^-^^^ sufficient sureties. A refusal to accept such. Plaintiflf'S failure to provide for prison- bond renders the sheriff liable to an action. er'S support. The failure of the plaintiff Richards v. Porter, 7 Johns. 137: Posterne v. *„ „-|...,„.^„ .(;.,„:i arrested. Legislation § 488. Enacted March 11, 1873; the bail bond of a defendant, arrested in a civil- re-enactment of Practice Act, § 82 (New York action, are not bound to surrender the defendant Code, § 188). -vvithin ten days after judgment, unless the plain- TcrU* ^* ^«. ^-^^^t. ^«* ^-^^ti^r-^aA rpi,„ t'*^ takes such measures as would authorize the- Wnt of ne exeat not preserved. The officer to hold defendant in cu.stody. Alien V. procedure hv w-hich jurisdiction is to be Breslauer, 8 Cal. 552. A surrender, within ten exercised may be prescrilied bv the legis- ^ays after execution, is a cumpli;..-ice with the , . 1 u -i ii'- ■ ii statute. Id. A portion of the bail may make- lature. except where it would im]>air the ihe surrender. In re Taylor, 7 How. Pr. 212T constitutional powers of the court, or prac- The offer of a party to surrender himself in dis" ticallv defeat their exercise, and the pro- ''harge of his sureties, was held to be a good ■ - .1.1-1 IV i. 1-ii i surrender. IJabb v. Oaklev, 5 Cal. 93. V/here cedure established by the legislature does the .iudgment will not warrant a writ of ca. sa. not include the writ of ne exeat. Ex parte to be issued under it, the bail will not be- Harker. 49 '"'al. 465. charged for neglecting to surrender the judgment CODE COMMISSIONERS' NOTE. Sureties on debtor. Matoon v. Eder, 6 Cal. 51 § 489. Same. Yor the purpose of surrendering the defendant, the bail, at any time or place before they are finally charged, may themselves arrest, or,. 471 BAIL — EXONERATION — NOTICE OF JUSTIFICATION. §§490-493 by a written authority indorsed on a certified copy of the undertakinfr, may empower the sheriff to do so. Upon the arrest of defendant by the sheriff, or upon his delivery to tlie sheriff ])y the bail, or upon his own surrender, the bail are exonerated, if such arrest, delivery, or surrender take pla^c before the expiration of ten days after judjiment; but if such arrest, deliv- ery, or surrender be not made within ten days after judfrment, the bail are finally charged on their undertaking, and bound to pay the amount of the judgment within ten days thereafter. Legislation 8 489. Enacted M.iroh 11, 1873; might have ha "*-'"i'''^..^''^°/''^"7?"r-''*,"^/' '-'^ ^LrnTt"- Writ of capias ad satisfaciendum. Provided instead of if, l)efore such arrest, ^i. • i ^^ ■ ^ i -n (5) the words "shall be" instead of "are," before \\ here the .ludf^ment is not such as will "finally charged," and (6) the word •'be" before warrant a writ of ca. sa. to be issued "bound to pay." Under it, the bail will not be charged Exoneration of sureties. The sureties for neglecting to surrender the judgment on a bail bond are exonerated wiien the debtor. Matoon v. Ivler, 6 Cal. 57. defendant is taken into the custody of pQ^j. COMMISSIONERS' NOTE. It was in the sheriff under an order or the court; Seaver v. Genner. lo Abb. Pr. •2.56, held, that and the vacation of such order does not, where the sureties failed to justify, but the de- hv nnpratimi nf Inw rpstorp the defend- fendant had been released, the sheriff became Dv operation or Jaw, restore tne aeiena ^.^., ^^^^ ^.^^^ surrender the defendant by re- aut to the custody of the sureties, not- arresting him. See also Sartos v. Merceques. 9 withstanding the fact that the sheriff How. Pr. 188. § 490. Bail, how proceeded against. 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. Legislation § 490. Enacted March 11, 1872; In an action against bail whose liability is fixed, based on Practice Act, § 84 (New York Code, they cannot show either in bar or mitiRation that before the recovery of judgment against their principal he wa.s and since has been in- solvent. Lew V. Nicholas, 19 Abb. Pr. 282: 1 „ „ ...,,„„„. -.T^™^ ,, . Rob. 614; Metcalf v. Strylcer, 10 Abb. Pr. 12; CODE COMMISSIONERS' NOTE. Matoon v. 31 garb 62 Eder, 6 Cal. 57; Otis v. Wakenian, 1 Hill, 604. § 491. Bail, how exonerated. The bail are exonerated by the death of the defendant or his imprisonment in a state prison, or by his legal dis- charge from the obligation to render himself amenable to the process. Legislation § 491. Enacted March 11. 1873; Merritt v. Thompson, 1 Hilt. 550; Olcott v. b.ised on Practice .\ct § 85 (New York Code, Lilly, 4 Johns. 407; Hayes v. Carrington, 12 S 191) which had the words "shall also be" in- Abb. Pr. 179; 21 How. Pr. 143. stead of "rfre," after "The bail." 2. Legal discharge. The final termination, otilv, of the action in favor of the defendant CODE COMMISSIONERS' NOTE. 1. Death. operates as a legal discharge. Von Gerhard v. Bail are exonerated by the death of the principal. Lifjhte, 13 Abb. Pr. 101. § 492. Delivery of undertaking to plaintiff, and its acceptance or rejec- tion by him. "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 with a copy of the undertaking of the bail. The original undertaking he must retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serye 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 Avithin ten days, the original under- taking must be filed with the clerk of the court. Legislation § 492. Enacted March 11, 1873; of "must," wherever this word occurs, and (2) based on Practice Act, § 86 (New York Code, the words "shall be" instead of "is" before § 192), which had (1) the word "•shall" instead "deemed" and before "exonerated." § 493. Notice of justification. New undertaking, if other bail. Within five days after the receipt of notice, the sheriff or defendant may give to the § 190), as amended by Stats. 1854, Redding ed. that before the recovery of judgment against p. 60, Kerr ed. p. 86, which had the word "such" instead of "the," before "original judgment." §§ 494—496 ARREST AND BAIL. 4:72 plaintiff or his attorney notice of the justification of the same, or other bail (specifying the places of residence and 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 con- sent of parties. In case other bail be given, there must be a new under- taking. T„»nfi„o«.<«., «* v,n o„^ ^„of R 40^ tii^S tJi^ words "or county judge" after "judge Justmcation of oail. See post, § 493. . ft -.nurt " Legislation § 493. 1. Enacted March 11, 1872; CODE COMMISSIONERS' NOTE. Leave to based on Practice Act, § 87 (New York Code except may, on motion, be granted after the time § 193), which had the word "shall" instead of }j^g expired, but on terms and without prejudice "must," before the words "be a new undertaking. jg ^^y right of the sheriff. Zimm v. Ritterman, 3. Amended by Code Amdts. 1880, p. 3, omit- 5 Rob. (N. Y.) 618. § 494. Qualifications of bail. The qualifications of bail are as follows : 1. Each of them must be a resident and householder, 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 sufficient bail. Qualifications of bail. Post, § 1057. be" to "must," and (b) the word "county" to _ _„ "state"; (2) adding, in subd. 2, the word "the" Legislation § 494. 1. Enacted March 11, 1873; before "arrest " based on Practice Act, § 88 (New York Code, § 194), which had (1) the words "shall be" in- CODE COMMISSIONERS' NOTE. See § 1057 stead of "are," in the introductory paragraph, of this code. and (2) also the words "shall be" instead of Householder. A party who rents and occupies "must," in first line of subd. 2. part of a building for an office is a householder, 3. Amended by Code Amdts. 1873—74, p. 306, within the meaning of this section. Somerset etc. (1) changing, in subd. 1, (a) the words "shall Savings Bank v. Huyck, 33 How. Pr. 323. § 495. Justification of bail. 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 notice, and may be examined on oath on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk, in his discretion, may think proper. The examination must be reduced to writ- ing, and subscribed by the bail, if required by the plaintiff. Justification before court commissioner. Ante, of negotiable promissory notes, and the evi- § 2o9, subd. 3. dence tends to show that these notes were Legislation 8 495. Enacted March 11, 1873; ^^^de to enable the sureties to justify, based on Practice Act, § 89 (New York Code, . . ■' -^ ' § 195), which had (1) the word "shall" instead there IS a failure to justify. Mokelumne of "must," before "attend" and before "be re- Hill etc. Mining Co. V. Woodbury, 10 Cal. duced," and (2) the word "county" before "clerk, 288 in his." Failure of sureties to justify. Where code COMMISSIONERS' NOTE. This kind sureties refuse to answer pertinent ques- ^oPrTV-i' immaterial (l Till & Shear. Prac. ■,,,., ^, '- ^ , 586); but It must be in the party s own right, tions, and to disclose the names of makers 2 Chit. 97. § 496. Allowance of bail. If the judge or clerk find the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the sheriff' is thereupon exonerated from liability. Court commisBionera, powers of, as to bail. cation. The justification is not complete until Ante, i 259, subd. 3. the judge has indorsed his allowance on the , , , , „„ T^ , ,, L ^o^r, undertaking, and caused it to be filed. O'Neil v. Legislation 8 496. Enacted March 11, 1873; Uurkee, 12 How. Pr 94; Overill v. Durkee, 2 basfd on Prason, 19 Cal. App. 85; 124 Pac. 1035. The issue and sole question in claim and delivery is the right to the possession at the time of the commencement of the action (Tuohy v. Linder, 144 Cal. 790; 78 Pac. 233), and the suit determines only the right of possession. Liver v. Mills, 155 Cal. 459; 101 Pac. 299. Claim and delivery is a statutory remedy provided to enable one to recover the possession of personal property wrongfully detained, with an alternative remeily if possession cannot be had (Riciotto v. Clement, 94 Cal. 105; 29 Pac. 414); and, considered as a remedy, it is at least commensurate with the action of detinue at common law. McLaughlin v. Piatti, 27 Cal. 4r>l. The right to the immediate and exclusive pos- session of specific property is the gist of the action, and the plea of another action pending, for the price of the same prop- erty, is not a bar (McCormick v. Gross, 135 Cal. 302; 67 Pac. 766; Parke & Lacy Co. V. Vv'hite River Lumber Co., 101 Cal. 37; 35 Pac. 442; Kolt Mfg. Co. v. Ewing, 109 Cal. 353; 42 Pac. 435); and the plain- tiff may or may not, at his election, seek the immediate delivery of the property. Wellman v. English, 38 Cal. 583. The in- vestigation is confined to the property mentioned in the complaint; other prop- erty cannot be brought into controversy by the answer (Hall v. Susskind, 109 Cal. 203; 41 Pac. 1012); nor can the defend- ant, in his answer, allege that the plain- tiff has taken from him other property than that mentioned in the complaint, and aslv or obtain judgment for its return. Lovensohn v. Ward, 45 Cal. 8. In re- plevin, the property remains in the cus- tody of the law, and all parties must take notice; the unsuccessful party may de- liver the property, and discharge himself from so much of the judgment as is made up by the assessed value, because the suit is about that specific property, and be- cause the title is not affected by the re- plevin bond. Hunt v. Robinson, 11 Cal. 262. Where the plaintiff's claim is based upon the possession and the right to the possession, by the mutual contract of the parties, and a wrongful taking of the prop- erty from him by the defendant, the ques- tion of the contract, being one in restraint of trade, will not be considered: such ques- tion cannot arise in restoring the parties to the position in which they had, by their contract, placed themselves. Cali- fornia Cured Fruit Ass'n v. Stelling, 141 Cal. 713; 75 Pac. 320. Proceedings in claim and deli\ery cannot be made the means of determining the right to the jios- session of or to purchase public lauds §509 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 476 Page V. Fowler, 28 Cal. 605. The plain- tiff cannot treat the defendant as if in possession of property, and then, on the trial, recover judgment against him on the ground that he was not in possession of the jiroperty. Hawkins v. Eoberts, 45 Cal. 38. A person having an interest in prop- erty may intervene in an action already instituted to recover the same. Joshua Hendy Machine Works v. Dillon, 135 Cal. 9; 66 Pac. 960. An answer praying for the return of property replevied seeks af- firmative relief, and prevents a dismissal bv the plaintiff. Acock v. Halsey, 90 Cal. 215; 27 Pac. 193. Claim and delivery, and trover, distin- guished. The distinction between jiroceed- ings in claim and delivery to recover possession of property or the value thereof in case delivery cannot be had, and ac- tions to recover damages for the wrongful conversien of property, is just as broad as that between the common-law actions of detinue and trover: one lies for the re- covery of the proiierty itself, with dam- ages for wrongful detention; the other, for the recovery of damages for the wrong- ful conversion of it. Kichanls v. Morey, 133 Cal. 437; 65 Pac. 886; Kelly v. Mc- Kibben, 54 Cal. 192. The action for dam- ages for the conversion of property and that for the recovery of specific property are distinct: the relief sought in claim and delivery cannot be had from the de- fendant, unless he is then possessed of the property, which fact constitutes an essential element in the plaintiff's cause of action. Eiciotto v. Clement, 94 Cal. 105; 29 Pac. 414. Personalty, what is. By the severance and removal of fixtures, they are con- verted into personalty, and thereby made subject to replevin. McNally v. Connolly, 70 Cal. 3; 11 Pac. 320. Property severed from freehold. Wood cut from the plaintiff's land, by one in possession without color of title, may be recovered by proceedings in claim and de- livery: the title to the property is not affected by severance from the freehold. Kimball v. Lohmas, 31 Cal. 154. The rule that crops cut from land held in adverse possession cannot be recovered in replevin does not apply to a mere trespasser who casually or temporarily enters for the pur- pose of severing or removing the property attached to and forming a part of the realty: such trespasser does not hold ad- versely. Page V. Fowler, 28 Cal. 605. Crops raised upon land, by one holding by adverse possession, cannot be recovered in proceedings in claim and delivery by the true owner of the land. Pennybecker V. McDougal, 46 Cal. 661. A trespasser or mere intruder entering the premises and removing the crops cannot raise the question of title with the owner so as to defeat proceedings in rejilevin for the crops. Halleck v. Mixer, 16 Cal. 574. An action by a prior possessor will not lie for hay cut from public land by one in pos- session thereof, claiming title as against all but the United States, and proceeding and endeavoring to perfect his pre-emption, claim thereto. Page v. Fowler, 28 Cal. 605. Crops raised by one in possession of realty as surviving partner, under a null and void agreement with the deceased partner that a patent was to be procured and held for the benefit of the copartnership, cannot be recovered in proceedings in claim and delivery by the heirs of the deceased part- ner. Groome v. Almstead, 101 Cal. 425; 35 Pac. 1021. A plaintiff, out of posses- sion of real property, cannot sue for tim- ber severed from the freehold, when the defendant is in possession of the premises from which the property was severed, hold- ing them adversely, in good faith, under claim and color of title: the personal ac- tion cannot be made the means of liti- gating and determining the title to real property as between conflicting claimants; but this rule does not exclude the proof of title on the part of the plaintiff in other cases, for it is upon such proof that the right of recovery rests; it is be- cause the plaintiff owns the premises, or has the right to their possession, that he is entitled to the chattel which is severed, and that must be, in the first instance, established. Halleck v. Mixer, 16 Cal. 574. Where the defendant is in the actual pos- session of land, in good faith claiming title thereto, the plaintiff, claiming to be the true owner thereof, cannot, by proceedings in claim and delivery, secure the posses- sion of property severed by the defend- ant from the land: title to land cannot be litigated in such proceedings. Hines v. Good, 128 Cal. 38; 79 Am. St. Rep. 22; 60 Pac. 527. Where the property sued for in claim and delivery was severed from the plaintiff's land, he can show his owner- ship of the property by proving ownership of the land, unless the defendant has, and had when the property was severed from the freehold, adverse possession of the land, claiming title thereto. Martin v. Thompson, 62 Cal. 618; 45 Am. Rep. 663; Hines v. Good, 128 Cal. 38; 79 Am. St. Rep. 22; 60 Pac. 527. Title or right to possession of plaintiff. The plaintiff, in claim and delivery, can- not recover, if he is not and never has been the owner or entitled to the posses- sion of the property sought to be recov- ered (Cardinell v. Bennett, 52 Cal. 476; Fredericks v. Tracy, 98 Cal. 658; 33 Pac. 750; Keech v. Beatty, 127 Cal. 177; 59 Pac. 837) : he must be entitled, at the time the action is commenced, to the immediate and exclusive possession of the property (People's Sav. Bank v. Jones, 114 Cal. 422; 46 Pac. 278), through some general or special property therein; but actual 477 POSSESSION OF PLAINTIFF — TENANTS IN COMMON, ETC. §509 prior possession is not essential. Garcia V. Gunn, 119 Cal. 315; 51 Pac. 684. Re- plevin lies for all goods and chattels un- lawfully taken or detained, and may bo brought whenever one jierson claims per- sonal property in the possession of an- other, whether the claimant over had possession or not, and whether his jirop- erty in the goods is absolute or qualified, provided he has the right to the posses- sion. Lazard v. Wheeler, 22 Cal. 139. Mere possession is sufficient, as against a trespasser, to give the right of action. Laughlin v. Thompson, 76 Cal. 287; 18 Pac. 330. An after-acquired title is not sufficient. People's Sav. Bank v. Joneg, 114 Cal. 422; 46 Pac. 278. Executors can institute proceedings in replevin, to re- cover property of the estate, under the general authority conferred upon them by statute. Halleck v. Mixer, 16 Cal. 574. A receiver cannot maintain the action, to re- cover property, which has not come into his possession, from a party to whom it has been transferred by the debtor, of whose property he takes charge, or from the sheriff holding it under process. Tib- bets V. Cohn, 116 Cal. 365; 48 Pac. 372; Bishop V. McKilliean, 124 Cal. 321; 71 Am. St. Rep. 68; 57 Pac. 76. An owner of land, who, under a contract with his tenant, is to receive a portion of the crop, and to retain sufficient of the remainder as security for his unj)aid claims against the tenant, may recover in claim and de- livery against a mortgagee of the tenant, who removes the crop without paying or tendering the amount due the owner. Tuohy V. Liuder, 144 Cal. 790; 78 Pac. 233. Crops raised upon land by one in posses- sion of the realty as a surviving partner, under a null and void agreement with the deceased partner, cannot be recovered, in claim and delivery, by the heirs of the 5 L. K. .\. 280. General rules as to parties in and title neces- sary to support replevin. See note 1 Ann. Cas. 984. Replevin for possession of deed. See notes 17 Ann. Cas. 1018; 20 L. R. A. (N. S.) 507. Replevin to recover produce of trees unlaw- fully cut from land. See note 19 L. R. A. 654. Replevin for dogs. See note 40 L. R. A. 507. Right to maintain replevin by or against one In adverse possession of land for things severed. See note 69 L. R. A. 732. Right to maintain action to recover property in specie against one not in possession. See note 18 L. R. A. (N. S.) 120-,. Replevin for undivided interest in personal property. See note 37 L. K. A. (N. S.) 267. 1 Fair. — 31 CODE COMMISSIONERS' NOTE. 1. Gen- erally. The comnioiilaw action of replevin is abolished, and the provisions of this chapter take its place. Roberts v. Randel, 3 Sandf. 707; 5 How. Pr. 327; Nichols v. Michael, 23 N. Y. 269; 80 Am. Dec. 259; Rockwell v. S.iunders, 19 Barb. 481. The action for the "claim and delivery of personal property," under our code, is commen- surate with the action of detinue at common law. -McLauKlilin v. Piatti, 27 Cal. 464. In that ac- tion, the manner of laying the possession of the property has always been held to be inducement. It is usual to aver a bailment or finding. Otero V. iJuUard, 3 C.il. 188. In this action, under the code the plaintiff may or may not, at his elec- tion, seek its immediate delivery. Wellman v. English, 38 Cal. 583. 2. Right of action may be assigned. Robinson V. Weeks, 6 IIow. Pr. 161; McKee v. Judd, 12 N. Y. 622; 64 Am. Dec. 515; People v. Tioga Common Pleas, 19 Wend. 75. 3. Bill in equity. If the recovery of the prop- erty is the jiiimary object, and damages would not compensate, a bill will lie. Nickerson v. Chatterton, 7 Cal. 570. 4. Fixtures. Fi.xtures wrongfully served from the premises become personal property, and may be recovered in this action. Sands v. PfeiflFer, 10 Cal. 258. 5. When the action can be maintained. The plaintiff must either have the possession, or the immediate right to the possession, of the prop- erty. Middlesworth v. Sedgwick, 10 Cal. 392. A safe in the possession of McC, belonging to W. P. & Co., for whom, as also for plaintiff, he was agent, contained six thousand dollars in coin. Of this sum, four hundred dollars belonged to W. P. & Co., the balance to plaintiff. The sheriff, under a writ against McC, seized eighteen hun- dred dollars of the money in the safe as his prop- erty, and put it in a bag. Plaintiff then claimed the money as his, McC. being present and not ob- jecting. It was held that this amounted to a segregation of eighteen hundred dollars from the mass of coin in the safe, so as to sustgin the action by plaintiff. Griffith v. Bogardus, 14 Cal. 410. To render the defendant liable, he must have converted the property to his own use, and if not, then any other act, to amount to a con- version, must be done with a wrongful intent, either e.xpress or implied. Rogers v. Huie, 2 Cal. 571; 56 Am. Dec. 363. This action lies for all goods and chattels unlawfully taken or detained, and may be brought whenever one person claims personal property in the possession of another, and this whether the claimant had ever had pos- session or not, and whether his property in the goods be absolute or qualified, provided he has the right to the possession. Lazard v. Wheeler, 22 Cal. 139. Where the defendant is in the ad- verse possession of land as a trespasser, without color of title, he is not in the position, before the statute of limitations has run, to contest the title of the true owner in such a sense as to de- feat a personal action brought by such owner to recover wood cut by him on (he land. Kimball V. Lohmas. 31 Cal. 156; Halleck v. Mixer, 16 Cal. 579. An agreement between two or more persons to convert the property of another, not followed by acts to that end, does not give a right of action against such persons. Herron v. Hughes, 25 Cal. 555. A bill of sale of a given number of cattle out of a herd running at large, which gives the purchaser the right to select and take at once the number sold, is sufficient to entitle the purchaser, after demand and refusal, to main- tain an action for the recovery of the entire herd, out of which he may make his selection, and return the residue to the vendor. McLaughlin v. Piatti, 27 Cal. 4G4. If a chose in action has been pleil"-ed to secure a debt, and payment has . been tendered and demand made for its return, this action will He. Luckey v. Gannon, 37 How. Pr. 134; 6 Abb. Pr. (X. S.) 209. 6. When the action cannot be maintained. One partner cannot sustain an action against another pariner for the delivery of personal property be- longing to the partnership. Buckley v. Carlisle. 2 Cal. 420. If an officer, by his misconduct, in- §510 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 482 duces a sale of property for less than it would otherwise have brought, the remedy must be an action for damages resulting from his acts, and not an action to recover the property. Foster v. Coronel, 1 Cal. Unrep. 402. Replevin for hay cut on public lands cannot be maintained by a prior possessor against one who was in adverse possession, claiming a pre-emption right entered when he cut the hay. Page v. Fowler, 2 8 Cal. 605. In an action brought against the sheriff, who seized the property by virtue of an attach- ment, it is a good defense to show that the de- fendant in the attachment, when insolvent, sold the property to the plaintiff to defraud his credi- tors; that the plaintiff had knowledge of these facts; and that the defendant has since been de- clared a bankrupt, and the sheriff has, on the demand of the assignee in bankruptcy, delivered him the goods. Bolander v. Gentry, 36 Cal. 105; 95 Am. Dee. 162. If, during the pendency and before the trial of the action, the defendant has been required, to and has delivered the property to another person, entitled to its possession as against both parties to the action, that fact may be set up to defeat the action. Bolander v. Gen- try, 36 Cal. 105; 95 Am. Dec. 162. If the prop- erty was seized by virtue of a warrant for a tax under an act of Congress, it cannot be replevied. O'Reilly v. Good, 42 Barb. 521; 18 Abb. Pr. 106. 7. Demand. Where personal property is wrong- fully detained, a demand is necessary before the action is commenced for its recovery. Sluyter v. Williams, 37 How. Pr. 109; 1 Sweeny, 215. A demand is not necessary before suing a sheriff for property tortiously taken by him. Wellman V. English, 38 Cal. 583; Moore v. Murdock, 26 Cal. 524; Boulware v. Craddock, 30 Cal. 190. The general rule is, that when the possession of property is originally acquired by a tort, no de- mand previous to the institution of suit for its recovery is necessary. It is only when the origi- nal possession is lawful, and the action rests upon the unlawful detention, that a demand is required. Paige v. O'Neal, 12 Cal. 483; Ledley V. Havs, 1 Cal. 160; Sargent v. Sturm, 23 Cal. 359; 83 Am. Dec. 118. Where the taking is by an officer upon proper legal authority, a demand is necessarv, in order to make him liable in dam- ages. Daumiel v. Gorham, 6 Cal. 43; Taylor v. Sevmour, 6 Cal. 512; Killey v. Scannell, 12 Cal. 73"; but see Wellman v. English, 38 Cal. 583. Where certain personal property owned by plain- tiff, but which had been used by A. & G., under a contract of hire, was taken by the officer from the possession of the plaintiff, by virtue of an attachment against G. subsequent to which plain- tiff, having made a demand for the property upon the sheriff, but not upon A. & G., commenced this action against the former for its recovery. Held, that the demand, if necessary at all, was prop- erly made upon the defendant in whose possession the propertv was at the time. Woodworth v. Knowlton, 22 Cal. 164. 8. Evidence. Where the vendee replevied the goods from the attaching creditor, and only es- tablished title by proving a possession of several months, it was competent for the defendant, on cross-examination of plaintiff's witness, to ask in whose possession the chattels were at a period anterior to the possession proved by plaintiff, to drnw from the witness, if possible, the fart that plaintiff's possession was a fraud to hide the debtor's prc)pcrty. Thornburgh v. Hand, 7 Cal. .054. The declarations of a vendor of personal property, after the sale, are not admissible to impeach the title of the vendee. Visher v. Web- ster, 8 Cal. 109. In an action to recover specific personal property, plaintiff relied exclusively upon his possession at the time of the taking by defendant; and defendant first established a prima facie title sufficient to destroy the pre- sumption of title in plaintiff arising from his possession, and then went further and showed, plaintiff excepting, that plaintiff obtained the property by proceedings under a void judgment. Held, that the introduction of this further evi- dence by defendant showing the invalidity of the judgment, was of no advantage to him, as he had already rebutted plaintiff's case, based solely on possession, and that it did not prejudice plain- tiff, and is no ground of error. Lafontaine v. Green, 17 Cal. "294. When property is taken from the defendant by the officer, it is sufficient to introduce in evidence the writ under which the levy is made; but when the property is taken from the possession of a stranger to the writ, it is necessary to show a judgment or prove the debt. Sexey v. Adkinson, 34 Cal. 346; 91 Am. Dec. 698. Evidence may be admitted of the highest market value of the property between the time of conversion and trial. Tully v. Har- loe, 35 Cal. 802; 95 Am. Dec. 102; but see Page V. Fowler, 39 Cal. 412; 2 Am. Rep. 462; cited in the note under subd. 9. 9. Damages. In actions for the recovery of personal property of fluctuating value, the meas- ure of damages is the highest market value within a reasonable time after the property was taken, with interest from the time the value was esti- mated. Page v. Fowler, 39 Cal. 412; 2 Am. Rep. 462: see also Dorsey v. Manlove, 14 Cal. 553; Phelps V. Owens, 11 Cal. 22; Pelberg v. Gor- ham, 23 Cal. 349. 10. Judgment. In this action the judgment may- be for more than the value as alleged in the com- plaint, if it be within the ad damnum of the writ. The value of the property is only one predicate of the recovery. Coghill v. Boring, 15 Cal. 215. AVhere the defendant has required the return of the property, and given an undertaking for such purpose, a judgment for plaintiff, in order to hold the sureties on the undertaking, must be in the alternative, as required by §§ 104, 177, and 210 of the Practice Act (§§514, 627, and 682 of this code). Nickerson v. Chatterton, 7 Cal. 569; Dorsey v. Manlove, 14 Cal. 555. Where a part- ner, in good faith, sells partnership property to satisfy his individual indebtedness, and the pur- chaser brings replevin against a creditor of the firm who has attached the property, it was held that the court properly rendered a judgment in favor of the purchaser, it being presumed in sup- port of the judgment that the court below found it as fact that the other partner consented to and authorized the sale. Stokes v. Stevens, 40 Cal. 391. The omission to specify in the judgment the property of which restitution is to be made is error. Campbell v. Jones, 38 Cal. 507. A de- fendant who recovers judgment, the jury failing to find the value of the property to exceed two hundred dollars, is entitled to his costs, where the plaintiff's complaint states its value at a sum exceeding that amount. Edgar v. Gray, 5 Cal. 267. If the action is improperly commenced, the party bringing it, having obtained the bene- fit, cannot avoid the undertaking he has given by pleading his own misfeasance. Turner v. Billa- gram, 2 Cal. 522. If the plaintiff take the prop- erty at the commencement of the action, and the defendant prays the return of it, and the de- fendant was entitled to the property at the com- mencement of the action, but his right has ceased and vested in the plaintiff before trial, the judg- ment ought to leave the property in plaintiff's possession, but award costs to defendant. O'Con- ner v. Blake. 29 Cal. 312. In an action by the pledgee against a stranger for the conversion of goods, the plaintiff is entitled to recover the full value of the goods ; but if the goods have been converted by the owner, or by any one act- ing in privity with him, the pledgee can recover only the value of his special interest in the pledge. Treadwell v. Davis, 34 Cal. 601; 94 Am. Dec. 770. 11. New matter in answer. Where the action is replevin, it is not competent for the defendant, in his answer, to introduce a new and distinct ' subject-matter of litigation, claiming of the plain- tiff the return of other properly. Lovensohn v. M'ard, 45 Cal. 8. § 510. Affidavit and its requisites. Whore a delivery is claimed, an affi- davit must be made by the plaintiff, or by some one in his behalf, showing: 483 AFFIDAVIT — REQUISITES — REQUISITION — SECURITY. §§ 511, 512 1. That the i)l;iintiff is the owner of the property elaimed (particularly describing it), or is entitled to the possession tliereof; 2. That the property is wrongfully detained by the defendant; 3. The alleged cause of the detention thereof, according to his best knowl- edge, information, and belief; 4. That it has not been taken for a tax, assessment, or fine, pursuant to a statute; or sei/ed, under an execution or an attachment against the pi-operty of the plaintiff; or, if so seized, that it is by statute exempt from such seizure ; 5. The actual value of the property. Subd. 6. Value, incorrectly stated in affidavit. CODE COMMISSIONERS' NOTE. 1. Owner- Ante §473. 8hip. If till' plaintiff claims as owner, his affi- davit need not set up facts proving such owner- Legislation S 510. Enacted jrarch 11, 1873; ship; his affidavit "that he is the owner" is, in based on I'ractice Act, § 100 (New York Code, this respect, sufficient. Burns v. Kobbins, 1 Code §207), which had, (1) in the introductory para- Rep. C2 ; Vandenburg v. Van Valkenburg, 8 eraph, the word "shall" instead of "must." (2) Barb. 217. But if the property is claimed as in subd. 1, the word "lawfullj-" before "entitled," exempt from execution, the facts constitutinR the (3) in subd. 4, (a) the words "the same" instead e.xemption must appear in the affidavit. Spal- of "it," before "has not been," and (b) the word ding v. Spalding, 3 How. Pr. 297; 1 Code Rep. "and" after "seizure." G4 ; see also Roberts v. Willard, 1 Code Rep. 100. __ -.L- ^ ^j -i 1 111- If 'he property is claimed by virtue of a special Necessity of affidavit. A constable is property therein, the affidavits must show the not justified in taking property, in claim facts in respect to such special property, to the and 'delivery, from the possession of the ^"i-l^''* ^^'"^ court may see upon what facts a -, . -, . • ' T ,•' i -I 1 ii special property and right of possession is made defendant, upon a direction so to do by the out. Depew v. Leal, 2 Abb. Pr. i3i. plaintiff, unless he receives from hini an 2. Additional affidavits. The court may allow affidavit, order, and undertaking substan- additional afiidaviis to be read, or the plaintiff ..1, , . .,, ,, . ",. 3 may file a supplemental affidavit to supply a de- tially complying with this section and fpct. Depew v. Leal, 2 Abb. Pr. 131. §§511, 512, post. Laughlin v. Thompson, 3. Amendments. Where the affidavit is objected 76 Cal. 2S7* IS Pae. 330. *° f^'' insufficiency, the court will permit an _'...' x^ " .^ 1-. i li amendment of course. Spalding v. Spalding. 3 Description of property. Property sought How. Pr. 297; i Code Rep. 64 to be recovered must be described with a 4. Opposing affidavits. In O'Reilly v. Good, reasonable degree of certainty, to enable },^ -^^'- I'f- 106 42 Barb 521, it was held that ,1 1 £ J T J. 1 i. i.1 A- 'he affidavit of the defendant and of a collector, the defendant to make return thereof. „,,t j^e goods were taken for a ta.x, was suffi- Ilawley v. Kocher, 123 Cal. 77; 55 Pac. 696. cieut to set aside proceedings under this section. See also Stockwell v. Vietch, 15 Abb. Pr. 412. Sufficiency of description of property in com- 5. Waiver. A general appearance in the ac- plaint for replevin, ,'•^ee note -is Am. iJec. C-,98. tion waives all irregularities in the affidavit. Necessity and sufficiency of allegation as to Wisconsin JI. & F. Ins. Co. Bank v. Hobbs, 22 ownership or right to possession in complaint in How. Pr. 494; Hyde v. Patterson, 1 Abb. Pr. replevin. See note Ann. t^as. 1912A, 333. 248. § 511. Requisition to sheriff to take and deliver the property. The plain- tiff or his attorney may, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant. Legislation § 511. Enacted March 11, 1873; thority upon him and the defendant may re-enactment of Practice Act, § 101 (New York „„„ j.u_ „fif;,.„_ i. »„^,„,.„« ,•+„ , •„ Code, §208), as amended by Stats. 1854, Red- ?"®,/7 ^^^^l^ tO recover its possession, ding ed. p. 60, Kerr ed. p. 86. Halleck v. Mixer, 16 Cal. o74; Laughlin v. or. -«•. i-v, -4. A J- i.- i. Thompson, 76 Cal. 2S7; 18 Pac. 330. Shenff's authority. A mere direction to ^ ' . o., j.o xau. oo^j. a sheriff or constable, bv the plaintiff in CODE COMMISSIONERS' NOTE. Rhodes v. f>1nim nnrl dplivprv tn tflkp nronprtv from Patterson. 3 Cal. 469; Smith v. Orser. 43 Barb. Claim ana aeii\ei>, to idKe propert} irora ,„_ p.__-, „ i.-i-hpr « am, p,. iv e , q«o the defendant, confers no color of au- 187; Barry v. Fisher, 8 Abb. Pr. (.N. S.) 369. § 512. Security on the part of the plaintiff, and proceedings in serving the order. Upon a receipt of the affidavit and notice, with a written under- taking, 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 ad.judged, 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 affidavit, if it be in the possession of the defendant or his agent, and e 512 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 484 retain it in bis custody. He must, without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to bim personally, if he can be found, or to his agent from whose possession the property is taken ; or, if neither can be found, by leaving 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, §§ 4185, 4188; and, generally, §§ 4175—4193. Qualifications of sureties. Ante, § 494 ; post, § 1057. Return of property to defendant. 1. Verdict for. Post, § 627. 2. Judgment for. Post, § 667. Dismissal of action. Clerk to hand undertak- ing to defendant. Post, § 581, subd. 1. Officer executing process must produce same on recLuest. Pol. Code, § 4169. Value stated in affidavit is not conclusive evi- dence against sheriff or sureties. Ante, § 4 73, Legislation § 512. 1. Enacted March 11, 1872 ; based on Practice Act, § 102 (New York Code, §209), as amended by Stats. 1854, Redding ed. p. 61, Kerr ed. p. 86, which had (1) the word "shall" instead of "must," before "forthwith take," and (2) the words "shall also" instead of "must," before "without delay." 2. Amendment by Stats. 19_01, p. 135; un- constitutional. See note ante, § 5. Effect of bond. The effect of a replevin bond is, simply, to give the party the pos- session of the property, pending the litiga- tion; the title is not changed; no sale made by the party in possession, and who after- « wards turns out to have no right to the property, can convey any title to the pur- chaser; and if the title would not vest in the unsuccessful party until the judgment in the replevin suit, of course it would not vest in him upon delivery of the replevin bond; and although the title vests upon the rendition of the judgment, yet the prop- erty is still subject to be taken by the successful party, until he makes his election to sue upon the undertaking in replevin; he may sue without issuing execution; but, at any time before suit is brought, the suc- cessful party may take the property if it can be found, and so, too, the unsuccessful party may return it; and that the effect of the replevin bond, under our statute, is, not to divest either the title or the lien of the other party, is clear: the contest is as to specific personal property; the recovery of the thing itself, and not damages in lieu thereof, is the primary object of the suit; the value is recovered only as an alterna- tive, when delivery of the specific property f-annot be had, and if the title could be divested by delivery of the rei)levin bond, the primary object of the suit could be de- feated; the unsuccessful party could always make his election to keep the property or pay its value; but this advantage was never intended to be given by the statute, to the party confessedly in the wrong. Hunt V. Robinson, 11 Cal. 262; Nickerson V. Chattr-rton, 7 Cal. ",08. Liability of sureties. The complaint in an action on a replevin bond must contain an averment that the value was found by the jury or the court: an allegation that neither the projterty had been delivered, nor the mere value as alleged in the original complaint had been paid, is not sufficient; if judgment is taken in the alternative, and the defendant fails to discharge the judgment, the sureties can only be required to pay the value of the property, and the amount of damages and costs awarded; the plaintiff, in a suit against the sureties, can- not recover damages for detention of his property, his damages being the legal inter- est upon the amount of judgment; and where a suit against the sureties is not for the recovery of the property, they, not being in possession, cannot be held respon- sible for its use or usable value; and the plaintiff, having already had judgment for the delivery of the property, upon which he can issue his execution, and under which the sheriff can take the property itself, has no cause to sue the defendants to regain possession of the property, but only for the amount of the judgment. Nickerson v. Chatterton, 7 Cal. 568. The surety, in an action upon a replevin bond, is liable to pay a judgment, in favor of the defendant against the plaintiff, for the value of the property. Donovan v. ^^tna Indemnity Co., 10 Cal. App. 72;'.; 10.'^. Pac. 36.5. Alternative judgment. The alternative judgment must be entered in the original action, in order to determine the amount to be recovered from the sureties. Claudius v. Aguirre, 89 Cal. 501; 26 Pac. 1077. The re- quirement of the alternative judgment for value applies only to cases which have been submitted to and passed upon by the jury, and not to a judgment of nonsuit, or for the defendant upon the sustaining of the demurrer; therefore the defendant may, in such case, recover the value of the pro]i- erty from the sureties on the replevin bond, where a delivery cannot be had, without a finding of value in the original action. Ginaca v. Atv/ood, 8 Cal. 446. The sureties are only bound for lawful judgment against their principal, and such judgment must be in the alternative, that the successful party may have delivery of the property, or if that cannot be had, that he recover the value as found by the jury and stated in the judgment, with his damages and costs. Nickerson v. Chatterton, 7 Cal. 568; Ginaca V. Atwood, 8 Cal. 446; Clary v. Rolland, 24 Cal. 147. The judgment in the original case fixes the value of the property, and 485 COMPLAINT — COSTS — SUFFICIENCY OF SURETIES, §513 the amount of damages and costs: these constitute the limit and extent of the lia- bility of the sureties; and where the plain- tiff can be compensated in damages, he must take his judgment in the alternative, and if he can find the projierty, he can take it; if not, he must take its value, and he can only ask the sureties to make good the judgment: they cannot be held to do more than their principal is required to do. Nick- erson v. Chatterton, 7 Cal. 568. Where property taken on the replevin bond from the defendant cannot be returned, a judg- ment for its value, without the alternative, is proper. Donovan v. .i^Ctna Indemnity Co., 10 Cal. App. 723; 103 Pac. 365. The 'sure- ties on the replevin bond are not released from liability, merely because the judg- ment entered was not in the alternative, and did not direct a return of the property taken on the bond. Donovan v. vl^^tna In- demnity Co., 10 Cal. App. 723; 103 Pac. 365. Complaint, Material parts of the under- taking should be alleged in tlie complaint, either literally or according to their legal effect; and a description of the undertak- ing, merely that it corresponds with the provisions of a certain statute, is insutli- cient; but, as the defect is rather of form than of substance, the objection must be taken by demurrer. Mills v. Gleason, 21 Cal. 274. The complaint on an undertak- ing, where there has been a trial and judg- ment, must show tlie value found by the jury, and that an alternative judgment was entered as provided bv § 177 of the Prac- tice Act (§ 627, post). "^Clary v. Eolland, 24 Cal. 147. Costs. In claim and delivery, the charge of a surety company for a replevin bond is not a proper item in a cost-bill. Williams v. Atchison etc. Rv. Co., 156 Cal. 140; 134 Am. St. Eep. 117;' 19 Ann. Cas. 1260; 103 Pac. 885. Right to recover value of property in action on replevin bond for breach of condition to prose- cute action. See note 4 Ann. Cas. Ii;j5. Recitals in replevin bond as evidence of value in action on bond. See note 18 Ann. Cas. 113. Plaintiff's undertaking in replevin as inuring to benefit of third person adjudged to be entitled to property. See note Ann. Cas. ISllil), 1106. Penalty as limit of recovery on replevin bond. See note 55 L. K. A. 390. Defects or irregularities affecting bond as a de- fense to action on replevin bond which has served its purpose. See note 129 L. K. A. ( N. .S.) 74 7. Effect upon surety on replevin bond of judg- ment against principal. See note 40 L. K. A. (N. S.) 744. CODE COMMISSIOlfERS' NOTE. 1. Substan- tial compliance. A substantial compliance with the provisions of this section is sufficient. Win- gate V. Brooks, 3 Cal. 112. The undertaking is not vitiated bv a misreeital, in the undertaking, of the date on whieh the uffidavit was filed. Hyde V. I'attirson. 1 Abb. Pr. ^^4H. 2. Generally. The fact that defendant brought Ills action before an incompetent tribunal is no defen.se to an action upon the undertakinc. and the plea that the title of properly so replevied is in him, is bad. McDermott v. Isbell, 4 Cal. 113. Where the defendant, in a replevin suit, failed to claim the return of the property in his answer, and on the trial the jury found a verdict for the defeiulatit, on which the court rendered judgment against plaintiffs for costs, whieh was paid, it was held that the payment of the judg- ment was a complete discharge of plaintiffs' sure- ties on the undertaking. Chambers v. \Valers, 7 Cal. 300. A recovery cannot be had on a bond inirporting to be a joint bond of the principal and sureties, but signed by the latter only; but it is otherwise as to undertakings under our system. They are original and independent con- tracts on the part of the sureties, and the signa- ture of the principal is not required. Sacramento v. Dunlap, 14 Cal. 421. Where the plaintiff gives the statutory undertaking, and takes pos- session of the property, and is afterwards non- suited, and jude-ment entered against him for the return of the properly and for costs, his sure- ties are liable for damages sustained by defend- ant by reason of a failure to return the goods, but not for damages for the original taking and detention, the value of the goods not having been found by the jury. Ginaca v. Atwood, 8 Cal. 446. T. cciuunenced an action against J., by attach- ment: the writ was levied upon certain personal properly by the plaintiff, H., as sheriff. M. J., wife of J., claimed the property as sole trader, and brought her action of replevin for the prop- erty, and obtained possession of the same by the delivery of an undertaking. The undertaking was e.xecuted by defendants B. and S. The replevin suit was decided in February 5, 1855, in favor of H. T. obtained judgment in the attachment suit against J., November 30, 1854. On the 18th of February. 1855, execution in favor of other creditors of J. coming into the hands of H., as sheriff, he levied them on the same property, and sulisequently sold the properly and paid the pro- ceeds into court. H. then brought this suit ag.iinst the sureties in the replevin bond. Held, that the lien of T.'s attachment continued after the replevy of the goods by M. .T. ; that the pos- session obtained by the plaintiff in replevin is only temporary, and does not divest the title or discharge the lien. Hunt v. Robinson, 11 Cal. 262. In an action upon the undertaking, the defendant's liability is limited to the damage sus- tained by a failure to return the property; there- fore, when the same property comes into the hands of H., as sheriff, the condition of the re- plevin bond to return the property is fulfilled. Id. Where the action is dismissed before trial, the liability of the sureties on the undertaking for a return of the property is not affected by the fact that before the dismissal an answer had been filed in which no return of the property was claimed. Mills v. Gleason, 21 Cal. 274. The dismissal of the action by the plaintiff before trial leaves the parties to settle in an action upon the undertaking those matters, including the right of defendant to a return of the prop- erty, which, had the original suit been prose- cuted, must have been determined therein in the first instance. The opportunity to obtain a judg- ment for the return having been taken away by the failure to prosecute, defendant is entitled to recover in an action on the undertaking. Id. 3. New undertaking. If the undertaking is defective, the court will allow a new one to be given nunc pro tunc. Newland v. Willetts, 1 Barb. 20. § 513. Exception to sureties and proceedings thereon, or on failure to ex- cept. The defendant may, within two days after the service of a copy of the affidavit and iindertakin. Cijunty judges, in granting injunc- tions upon bills tiled in the district court, act as injunction masters, and are exercising a power auxiliary to the jurisdiction of the district court. The effect of such an order is the same as if made by the district court, and the injunction is subject to be controlled, modilied, or dissolved by the district judge, the same as if ordered by him in the first instance. Borland v. Thornton, 12 Cal. 440; Crandall v. Woods, 6 Cal. 449; see Ward V. Preston, 23 Cal. 468. An injunction granted by a county judge may be dissolved or modified Ijy him. Creanor v. Nelson, 23 Cal. 464. 4. When a court or judge cannot grant an in- junction. One district court cannot grant an in- junction to restrain the execution of the orders, or decrees, or judgments of another court of co- ordinate jurisdiction. Rickett v. Johnson, 8 Cal. 34; Revalk v. Kraemer, 8 Cal. 66; 68 Am. Dec. 304; Chipman v. liibbard, 8 Cal. 268; Fhelan v. Smith, 8 Cal. 520; Corham v. Toomey, 9 Cal. 7"; Anthony v. Dunlap, 8 Cal. 26. An exception to the rule is, where the court in which the action or proceeding is pending is unable, by reason of its jurisdiction, to afford the relief sought, as, for instance, where several fraudulent judRmenla are confessed in several courts, it would not be necessary for a creditor to bring a different suit in each different court. Or, where the provis- ions of the code require the action to be tried in a particular county, there would be an excep- tion, as the positive provision of the statute must be carried out. Uhlfelder v. Levy, 9 Cal. 697 ; Anthony v. Dunlap, 8 Cal. 26. The supreme court cannot grant an injunction, pending' an ap- peal. Hicks v. ilichael, 15 Cal. 107. A state court cannot enjoin the proceedings of a United States court. Phelan v. Smith, 8 Cal. 520. 5. Generally. It is not necessary that the plaintiff should first establish his title at law before he can obtain an injunction. Tuolumne Water Co. v. Chapman, 8 Cal. 392. Whether a taxpayer can, by injunction to restrain the per- formance of a ministerial duty cast upon public officers, merely upon the ground that the effect, at some future time, if certain other things be done, might be to subject his property to taxa- tion, was suggested, but not decided, in Pattison v. Board of Supervisors, 13 Cal. 175; Duff v. Fisher, 15 Cal. 375. To authorize a court of equity to enjoin a judgment at law, on the ground of newly discovered facts, the proceeding must be taken by the defendant in the judgment at law. Mulford v. Cohn. 18 Cal. 42. An action on the case will not lie for improperly suing out an injunction, unless it is charged in the complaint as an abuse of the process of court, through malice, and without probable cause. Robinson v. Kellum, 6 Cal. 399. If the act complained of is § 526 INJUNCTION. 490 destitute of these elements, the remedy of the unlawful, or treat such an act a disobedience of injured partv is on the undertaking. Id. its provi.sions. People v. Albany etc. R. R. Co., 6. Not retroactive. The order is never retro- 12 Abb. Pr. 171; 20 How. Pr. 358. active: it cannot make an act already performed § 526. When it may be granted. An injunction may be granted in the following cases: 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 restraining the commission or continuance of the act complained of, either for a limited period or perpetually ; 2. When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action ; 3. When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual; 4. When pecuniary compensation would not afford adequate relief; 5. Where it would be extremely difficult to ascertain the amount of com- pensation which would afford adequate relief; 6. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; 7. Where the obligation arises from a trust. An injunction cannot be granted : 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings ; 2. To stay proceedings in a court of the United States ; 3. To stay proceedings in another state upon a judgment of a court of that state ; 4. To prevent the execution of a public statute by officers of the law for the public benefit ; 5. To prevent the breach of a contract, the performance of which would not be specifically enforced ; 6. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession ; 7. To prevent a legislative act by a municipal corporation. When granted, generally. Civ. Code, §§ 3422 mission or continuance of the act complained of, et sf-q. either for a limited period or perpetually; 2. Where obligation arises from trust. Civ. Code, When it shall appear by the complaint or affi- S 3-122. davit that the commission or continuance of some Illegal payments by county, enjoining. See act during the litigation would produce great or Pol. Code, § 40O.Tb. irreparable injury to the plaintiff; 3. When it Enjoining nuisance. Post, § 731. shall appear during the litigation that the defend- Trade-mark, use of, enjoined. Pol. Code, § 3199. ant is doing, or threatens, or is about to do, or Mortgage, injunction to restrain party in pos- is procuring or suffering to be done, some act in session from waste during foreclosure of. Post, violation of the plaintiff's rights, respecting the { 74.0. subject of the action, and tending to render the Disobeying order or process, contempt, etc. judgment ineffectual." When enacted in 1872, Post. |§ 1209, 1210. (1) in subds. 1, 2, 3, the words "shall appear" Restraining injurious acts of executors, pend- were changed to "appears," and (2) in subd. 2, ing proceeding to prove lost or destroyed will. the word "waste" was added after "produce." See post, 8 1341. 2. Amendment by Stats. 1901, p. 136; un- constitutional. See note ante, § 5. Legialatlon 8 526. 1. Enacted March 11, 1872; 3. Amended by Stats. 1907, p. 341; the code based on Practice Act, § 112 (New York Code, commissioner saying, "Subdivisions 2 and 3 have J 219;, which read: "An injunction may be been amended so' as to permit the application for granted in the following cases: 1. When it shall an injunction to be made by parties to the action appear by the complaint that the plaintiff is en- other than plaintiff, and the provisions of §§ 3422 titled to the relief demanded, and such relief, or and 3423 of the Civil Code have been added to any part thereof, consists in restraining the com- the section." 491 RULE FALSE CLAIM SUPERSEDEAS — APPEAL. S526 No strict rule governing granting of in- junctions. Courts of c(juity (Iccliiie to lay (iown any rule which will limit their power and (iiscretiou as to the particular eases in whieh injunctions shall be granted or withheld: it is impossible to foresee all the exigencies of society, which may require their aid and assistance to protect rights and redress wrongs. Merced Mining Co. v. Fremont, 7 Cal. 317; G8 Am. Dee. 262. Where an injunction is justifiable, the is- suing of th^ writ is, in a large degree, a matter of discretion, which should be ex- ercised in favor of the party most likely to be injured (Eaisch v. Warren, IS Cal. App. 655; 124 Pac. 95); but rules of law cannot be relaxed, in order to relieve isolated instances of hardship. Collins v. Butler, 14 Cal. 223. Complainant must have clean hands. A person coming into a court of equity for an injunction must come with clean hands and without any lack of truth in his own case: he cannot be granted relief upon a claim which contains a false representa- tion calculated to deceive. Joseph v. Ma- cowskv, 96 Cal. 518; 19 L. K. A. 53; 31 Pac. 914. Injunction does not stay time. While the acts of the parties are restrained by the injunction, yet it does not stay the running of time, nor can it extend the time for making a motion for a new trial. Elliott V. Osborne, 1 Cal. 396. Acquiescence of plaintiff as bar. The statute of limitations is directly applica- ble to a suit in equity; and a court of chancery may properly refuse to grant re- lief by injunction, where the plaintiff has assented to the acts complained of, and their consequences; and such assent may be inferred from the plaintiff's acquies- cence with full knowledge of all the facts; and further, acquiescence, proving assent, may bar relief in equity, although not accompanied by all the circumstances which would make it an estoppel at law; the acquiescence whieh will bar a com- plainant from the exercise, in his favor, of the discretionary jurisdiction by in- junction must be such as proves his assent to the acts of the defendant, and to the injuries to himself which have flowed, or can reasonably be expected to flow, from those acts. Lux v. Haggin, 69 Cal. 255; 4 Pac. 919; 10 Pac. 674. Distinction between supersedeas and in- junction. A writ of supersedeas, or order for the stay of proceedings pending an appeal, is limited to restraining any ac- tion upon the judgment ajipealed from, and cannot be used to perform the func- tions of an injunction against the ]iarties to the action, restraining them from any act in the assertion of their rights, other than to prevent them from using the pro- cess of the trial court to enforce the judg- ment; nor can the writ be employed for any purpose, upon persons not jiarties to the judgment. Dnlin v. Pacific Wood etc. Co.. 9S Cal. :i(i5; I'..'! I'ac. IL'.'I. Effect of appeal on injunction. The dis- tinction between the etlect of an apjieal from a judgment in staying further j)ro- ceedings thereon, and its effect in dei)riv- ing the judgment itself of any efiicacy as evidence of the fact determined, is, that the aiij)eal suspends the force of the judg- ment as a conclusive determination of the rights of the parties, while the stay of proceedings consecjuent upon the appeal is limited to the enforcement of the judg- ment, and does not destroy or impair ita character. Dulin v. Pacific Wood etc. Co., 98 Cal. 304; 33 Pac. 123. The purpose of the injunction is to hold the subject of litigation in statu quo until a final de- termination; but the judgment may com- mand or permit some act to be done, in which case a stay of proceedings will be had, although, as a general rule, the in- junction is not dissolved or suspended by the appeal. Stewart v. Superior Court, 100 Cal. 543; 35 Pac. 156, 563. An in- junction restraining interference with a person's right to act as a director of a corporation, which is but ancillary and incidental to a judgment determining that he had such right, although preventive in form, is in effect mandatory, as it requires the other directors to recognize him as one of their number, and to refuse to recognize a third party, and as that portion of the judgment declaring the jtarty elected is suspended by the appeal, the injunctive portion of the judgment, being merely in- cidental, is also suspended, and the j)ower of the court to enforce any part of its judgment, by inflicting punishment for its violation, is stayed: an enforcement of this portion of the judgment would oper- ate to carry the decree into effect, and would change the relative position of the parties from those existing at the time the decree was entered, and might render a reversal of the judgment ineffectual. Foster v. Superior Court, 115 Cal. 279; 47 Pac. 58; and see Stewart v. Superior Court, 100 Cal. 543; 35 Pac. 156, 563. The office of the writ of injunction is pecu- liarly preventive, and not remedial; to re- strain the wrong-doer, not to punish him after the wrong has been done, or to com- jiel him to undo it; and if the injunction, though restrictive in form, has the effect of compelling the performance of a sub- stantive act, it is mandatory, and neces- sarily contemplates a change in the rela- tive positions or rights of the parties from those existing at the time the injunction was granted or the decree was entered. Stewart v. Sujierior Court, 100 Cal. 543; 35 Pac. 156, 563. The ajipellate court will not suspend the operation of a judgment granting a perjietual injunction, pending an appeal. Swift v. Shepard, 64 Cal. 423; 1 Pac. 493; and see Pierced Mining Co. v. Fremont, 7 Cal. 130. Where a board of §526 INJUNCTION. 492 education was restrained from using cer- tain text-books, and required to use cer- tain others, the board, pending an appeal from the judgment, should merely be re- quired to remain passive and take no ac- tion in favor of or against either system of text-books. Mark v. Superior Court, 129 Cal. 1; 61 Pac. 436. Where an injunc- tion was granted, ordering the removal of trade-signs, and prohibiting the use of a trade name thereon, a perfected appeal stays proceedings as to the mandatory portion of the injunction, but has no such effect upon that part of the injunction which is merely prohibitory. Schwarz v. Superior Court, 111 Cal. 106; 43 Pac. 580. The court, after judgment for the defend- ant, denying an injunction, may issue an order restraining him, pending the deter- mination of a motion for a new trial. Pasadena v. Superior Court, 157 Cal. 781; 21 Ann. Cas. 1355; 109 Pac. 620; Pierce v, Los Angeles, 159 Cal. 516; 114 Pac. 818. Many judgments are self-executing or have an intrinsic effect, upon which there are no proceedings to be stayed, and which, therefore, would not be affected by an appeal; such as judgments granting or dissolving an injunction, or granting or denving a divorce. Dulin v. Pacific Wood etc. Co., 98 Cal. 304; 33 Pac. 123. Where the plaintiff is entitled to and ob- tains an injunction before trial in the lower court, he is entitled to retain it upon the cause being remanded for a new trial. Hess v. Winder, 34 Cal. 270. The operation of a restraining order is not ex- tended by an appeal from the order deny- ing the injunction: where the injunction is refused, there is nothing operative, and the appeal cannot operate to create an injunction, under any circumstances. Hicks V. Michael, 15 Cal. 107. A process, once discharged and dead, is gone forever, and it never can be revived, except by a new exertion of judicial power: it cannot be revived by any act of the party, nor by the taking of an appeal. Hicks v. Michael, 15 Cal. 107. The superior court has no jurisiliction to punish for disobedience of a manilatory injunction, pending an ap- peal, though it may punish for the viola- tion of a prohibitory injunction. Dewey V. Superior Court, 81 Cal.' 64; 22 Pac. 333. Preservation of status quo. The code provisions regulating injunctions do not curtail the general grant of equity power vested in the superior courts by the con- stitution, nor affect tlieir general chancery power to preserve the status quo of the subject-matter of the litigation, pending an ai>peal. Pasadena v. Superior Court, 157 Cal. 781; 21 Ann. Cas. 1355; 109 Pac. 620. A prohibitory injunction remains in full force, pending an appeal, and the court may enforce obedience thereto; but a manilatory injunction is stayed by the operation of the aiqieal: the object of the rule, in both cases, is to preserve the status quo; otherwise the result of the final adjudication might often be a bai'ren vic- tory. Dewey v. Superior Court, 81 Cal. 64; 22 Pac. 333. A complaint in an action for a partnership accounting, which shows that a deceased partner was indebted to the pjartnership, but had caused his shares of stock in a corporation defendant and in another corporation, both of which were used as instrumentalities of the part- nership, to be transferred to his heirs as a gift causa mortis, states ^ ground for relief in equity against the administrator and the heirs, who may be restrained from disposing of such stock, pending the set- tlement of the partnership accounts. Raisch v. Warren, 18 Cal. App. 655; 124 Pac. 95. The superior court has jurisdic- tion to issue an injunction in a divorce proceeding, restraining the husband from alienating his property, pending suit. In re White, 113 Cal. 282; 45 Pac. 323. Where the defendant selected public lands under a contract to secure them for the plaintiff, the latter is entitled to a pre- liminary injunction, in a suit brought by him to restrain the defendant from con- veying such lands to another party. Far- num V. Clarke, 148 Cal. 610; 84 Pac. 166. To prevent waste. A court of equity is always more ready to listen to an applica- tion for an injunction on the ground of waste, than on the ground of trespass; the old rule was, that an injunction to prevent waste, or trespasses in the nature of waste, could only be granted when the parties stood in the relation of landlord and tenant, and not where the party doing the act complained of was a mere stranger; but, upon sound principles, this rule has been relaxed; for in many cases irreme- diable mischief might be done to the in- heritance if an injunction were refused. Hicks v. Michael, 15 Cal. 107. The distinc- tion between waste and trespass, so far as regards the power of the court to grant an injunction, has been set aside; and an in- junction is now granted in all cases of timber, coal, ores, and quarries, where the party is a mere trespasser, or where he ex- ceeds the limited rights with which he is clothed, on the ground that the acts are or may be irreparable damage to the par- ticular species of property. Merced Min- ing Co. V. Fremont, 7 Cal. 317; 68 Am. Dec. 262. At common law, a tenant had no redress for acts of admitteil waste committed by his co-tenant; but under our statute, a tenant may now recover dam- ages from his co-tenant in every case of waste; but where the acts complained of are not wanton and destructive, no in- junction lies. McCord v. Oakland etc. Mining Co., 64 Cal. 134; 49 Am. Rep. 686; 27 Pac. 863. Where the effect of the act complained of would be to impair or de- stroy the substance of the estate, by tak- ing from it sometliing whicli cannot be rcjilaced, it may be enjoined, irrespective 493 TO PREVENT WASTE — TRESPASS. §526 of the ability of tlie dpfeiulant to respond in damages. Ki'llogg v. Kiiifi, 114 Cal. 378; 55 Am. St. Hop. 74; 4(5 Pac. 1G6. The remedy for waste is ordinarily at law; but where the relief sought is for the pur- pose of preserving the security of a mort- gage, equity will interpose by injunction to prevent future waste, and, in the same action, an accounting will be decreed and compensation given for past waste. Mit(di- ell V. Amador Canal etc. Co., 75 Cal. 464; 17 Pac. 24li. A trespass in the nature of waste, which goes to deprive a party of {lart of his inheritance, should be re- strained by injunction: the defendant might be able to pay for the mischief done, if it could ultimately be proved that his acts were tortious; but if anything is to be abstracted which cannot be re- stored in Pjtecie, no man should be liable to have that taken away which cannot be replaced, merely because he may possibly recover what others may deem an equiva- lent in money. Hicks v. Michael, 15 Cal. 107. A mortgagee may stay the commis- sion of w-aste on the mortgaged premises, upon a showing that the commission of the threatened acts will materially impair the value of his seeuritv (Kobiuson v. Eussell, 24 Cal. 467; Buckout v. (Swift, 27 Cal. 433; 87 Am. Dec. 90; Miller v. Wad- dingham, 91 Cal. 377; 13 L. E. A. 680; 27 Pac. 750) ; and he has concurrent reme- dies, •where the mortgagor commits waste upon the mortgaged premises so as to im- pair the security, by an action at law for damages, or by a suit in equity for an in- junction to prevent threatened damages (Laveuson v. Standard Soap Co., 80 Cal. 245; 13 Am. St. Kep. 147; 22 Pac. 184); but he cannot maintain a suit in equity to restrain waste, without a showing that thereby his security will be impaired. Miller v. Waddingham, 91 Cal. 377; 13 L. E. A. 680; 27 Pac. 750; Stowell v. Wad- dingham, 100 Cal. 7; 34 Pac. 436. An averment of acts which impair the value of the securitj' for the rent, in a suit to restrain such acts, is not sufficient, where the only showing is that the security will be lessened in value: it must be shown that such security will be left inadequate to secure the rent. Perrine v. Marsden, 34 Cal. 14; and see Buckout v. Swift, 27 Cal. 433; 87 Am. Dec. 90. Although not a technical waste, a jiarty is entitled to an injunction against the removal, beyond his reach, of a building on which he has a lieu: such removal would destroy his statutory right, and deprive him of his lien. Barber v. Eeynolds, 33 Cal. 497. An injunction cannot issue to prevent waste, where the waste had already been com- mitted: an injunction cannot issue to re- strain the removal of buildings from land, after the buildings have been removed, and are in the middle of a public high- way. Stowell V. Waddingham, 100 Cal. 7; 34 Pac. 436. An entry upon land, and the iligging uji and removal of fruit-trees growing thereon, is waste, and an injury to the inheritance, which a court of equity may enjoin. Silva v. Garcia, 65 Cal. 591; 4 Pac. 628. Where the defendants enter ujton the plaintiff's ])roi»erty, and dig up and destroy fruit-trees and ornamental shrubbery, and threaten to continue such trespasses, the mere fact that they are willing to i)ay for the i)roperty is imma- terial, in view of the fact that, from the nature of such property, it would be im- possible to determine its value in money. Daubenspeck v. Grear, 18 Cal. 443. The removal of pendent fruit and growing nursery stock, by a mortgagor in posses- sion, is not an act from which irrejiarable injury will result: full and adequate dam- ages can be recovered in an action for trespass; and the doing of such acts does not materially impair the value of the inheritance, the substance of the realty. Eobinson v. Eussell, 24 Cal. 467. Prevention of trespass. A naked tres- pass merely, where no waste is committed, does not present a case for injunction. Nevada County etc. Canal Co. v. Kidd, 37 Cal. 282. An ancient rule in cases of trespass was, that a court of equity would not interfere by injunction, but left the party to his remedy at law; in modern times, this doctrine has been much relaxed, and although the general rule re- mains, yet there are exceptional cases where equity does and will interpose, but only where a strong case is made; thus, it will interfere to quiet possession or to prevent a multiplicity of actions, or where the value of the inheritance is put in jeopardy, or where irreparable mischief is threatened in relation to mines, quar- ries, or. woodland, whether the same re- sults from the nature of the injury itself or from the insolvency of the party com- mitting it. Leach v. Day, 27 Cal. 643. Equity will not interpose to restrain a trespasser, simply because he is a tres- passer and is insolvent: other facts and circumstances must be shown. Mechan- ics' Foundry v. Eyall, 75 Cal. 601; 17 Pac. 703; California Navigation Co. v. Union Transportation Co., 122 Cal. 641; 55 Pac. 591; California Navigation etc. Co. v. Union Transportation Co., 126 Cal. 433; 46 L. R. A. 825; 58 Pac. 936. A trespass about to be committed by a defendant cannot be restrained by an injunction, unless the injury would be irreparable, which could only be upon a clear show- ing of the plaintiff's right and of the de- fendant's insolvency. JMore v. Ord, 15 Cal. 204. An injunction ought not to be granted in aid of an action of trespass, un- less it appears that the injury will be ir- reparable, and cannot be compensated in damages (Waldron v. Marsh, 5 Cal. 119); it is not sufficient simjdy to allege the fact that the injury will be irre]iarable: it must be shown how and whv it will be so. Ran- §526 INJUNCTION. 494 dall V. Freed, 154 Cal. 299; 97 Pac. 669. Where a tresj)ass already comniitteil would probably be repeated indefinitely, an injunc- tion may be granted, to avoid a multiplicity of actions. Smithers v. Fitch, 8:2 Cal. 153 ; 22 Pac. 935. A bona fide possession of the invaded premises, under claim and color of right, is sufficient to warrant an injunc- tion against a trespasser. Kellogg v. King, 114 Cal. 378; 55 Am. St. Rep. 74; 46 Pac. 166. An injunction will issue to prevent acts interfering with complainant's ingress to and egress from his dwelling, such as the nailing up and closing of gates, and the cut- ting and obstructing of water-pipes. Zie- rath V. McCann, 20 Cal. App. 561; 129 Pac. 80S. The owner of a private wharf, in possession thereof, is entitled to a per- petual injunction restraining the construc- tion of another wharf in front of his, which will cut his wharf off from the navi- gable waters of the bay, unless the person constructing the same shows a lawful right, derived from competent authority, to do so. Cowell v. Martin, 43 Cal. 605. A trespasser on the premises of another, who also assumes control over his busi- ness, and intercepts money due to him, and holds himself out to the public as a part- ner having the right to do these things, may be restrained: bodily ejectment from the premises would not necessarily prevent the continuance of such injuries; nor would an action for damages afford ade- quate relief, because of the difficulty of as- certaining, in pecuniary terms, the amount of damages, and because of the insolvency of the trespasser. De Groot v. Peters, 124 Cal. 406; 71 Am. St. Rep. 91; 57 Pac. 209. A complaint alleging that the trespass was committed under a pretended claim of right of way over the plaintiff's land, by virtue of a pretended order of a board of supervisors opening and establishing a private road for the defendant's use, and that the defendant threatens to tear down the plaintiff's fences as often as the plain- tiff erects the same, is not sufficient to warrant an injunction, where no reasons are given why the plaintiff has not an ade- quate and complete remedy at law. Leach v. Day, 27 Cal. 643. An injunction will lie against a trespasser to restrain the raising of the level of a street, in the absence of anything to show that the defendant was proceeding under legal authority; and the fact that the defendant is solvent does not defeat the plaintiff's right, as the acts complained of constitute such an obstruc- tion of the plaintiff's easement in the street as to constitute a permanent injury to the inheritani-c, and would ripen into a right if permitted. Schaufele v. Doyle, 86 Cal. 107; 24 Pac. 834. An injunction will not lie for a trespass committed on land, where the plaintiff is wholly disseised, and the defendant is in adverse pos.session. Kaffetto v. Fiori, 50 Cal. 363; Felton v. Justice, 51 Cal. 529. Although the wild game of the state belongs to the people in their sovereign capacity, and is subject to private dominion only by authority of the legislature, yet, within the provisions of the statute prescribing in what cases individual ])ro])rietorship therein mav ex- ist, the individual owner is as much to be protected in the enjoyment of his rights in this species of property as in any other, under the law: any person violating such rights is a trespasser, and may be en- joined. Kellogg V. King, 114 Cal. 37S; 55 Am. St. Rep. 74; 46 Pac. 166. The pay- ment of damages is a condition precedent to the creation of the right of a city to change a natural watercourse, to the dam- age of the plaintiff's property: without such payment, the city is a mere trespasser, and injunction is the plain, ordinary, and best remedy. Geurkink v. Petaluma, 112 Cal. 306; 44 Pac. 570. A technical trespass, committed by the business agent of a labor council, in entering upon the prem- ises of the plaintiff, for the purpose of calling the men out on a lawful strike, is, in the absence of any threatened repeti- tion of the act, not a ground for an in- junction. Parkinson Co. v. Building Trades Council, 154 Cal. 581; 21 L. R. A. (N. S.) 550; 16 Ann. Cas. 1165; 98 Pac. 1027. Nuisances. An injunction may be granted to prohibit the defendant from permitting Ms premises to be occupied as a house of prostitution. Farmer v. Behmer, 9 Cal. App. 773; 100 Pac. 901. In order to ob- tain an injunction to restrain obstructions of public highways, the injury complained of must be special in character, and not merely greater in degree than that of the general public. Biglev v. Nunan, 53 Cal. 403; Payne v. McKinley, 54 Cal. 532; Crowley v. Davis, 63 Cal. 460. Where the court finds that a nuisance exists and is continuous, the issuance of an injunction is justified, although not specifically prayed for in the complaint. Sullivan v. Rover, 72 Cal. 248; 1 Am. St. Rep. 51; 13 Pac. (355. To prevent irreparable injuries. An in- junction is never granted, unless the bill shows seme vested right in the plaintiff', which is likely to suffer great or irrep- arable injury from the act complained of; the mere allegation of such injury is in- sufficient: the facts stated must satisfy the court that such apprehension is well founded. Branch Turnpike Co. v. Board of Supervisors, 13 Cal. 190. Not every case in which a property-owner deems himself liable to be injured will justify the issu- ance of an injunction; and courts will not grant a preliminary restraining order or injunction, unless it is made to appear that damages might result. Geurkink v. Petaluma, 112 Cal. 306; 44 Pac. 570. Where the plaintiff has a right of way for a ditch upon the surface and the defend- ant has a right to mine in the bowels of a mountain, such rights are not necessarily incompatible, and the defendant will not 495 IRREPARABLE INJURY — REMEDY AT LAW INADEQUATE, §526 be enjoined from so mining, even though the destruction of the jilaintiff's ditch is threatened. Clark v. Willett, 35 Cal. 5;U. A riparian owner is entitled to have the water of the stream flow over his land in its usual volume, and also in its natural purity; and the jtollution of the stream by the defendant so as substantially to im- pair its value for the ordinary purposes of life, and render it measurably unfit for domestic purposes, is an actionable nui- sance; and the fact that the defendant is a municipal corporation does not enhance its rights nor palliate its wrongs in this respect. Peterson v. Santa Eosa, 119 Cal, 387; 51 Pac. 557. An action by the owner of land, in possession thereof, to enjoin the removal of machinery, engines, der- ricks, and tramways, attached to the soil, ■will be sustained, upon the presumption of ownership arising from the possession thereof, even if the property be consid- ered as personal property, in the absence of proof of other ownership thereof, Nolan V. Eostler, ]35 Cal. 261; 67 Pac. 127. Where a defendant, pending negotiations of his employer for a renewal of the lease of the premises occupied by him for business pur- poses, uses his knowledge of his employer's business, and secretly, with another, se- cures a lease of such premises for himself and such other, the plaintiff employer, in an action to compel the transfer of the lease, is entitled to an injunction, pendente lite, to restrain the defendant from pro- ceeding to recover the premises. Gower v. Andrew, 59 Cal. 119; 43 Am. Rep. 242. A creditor holding a certificate of stock as collateral security has no right to enjoin the sale thereof under execution, after at- tachment and judgment, where he did not have such stock transferred on the books of the company. Farmers' Nat. Bank v. Wilson, 58 Cal. 600. An injunction will issue to prohibit the continuance of a use that obstructs one in the free vise and en- joyment of his land, where such use, if con- tinued, will ripen into an easement. Vestal V. Young, 147 Cal. 715; 82 Pac. 381, The plaintiff is entitled to an injunction upon the jileadings, where an alteration in the mode and manner of using an easement is so substantial as to result in the creation and substitution of a difTerent servitude from that which previously existed; and it is immaterial that a benefit to the plaintiff will accrue by reason of the acts com- plained of. Allen V. San Jose Land etc. Co., 92 Cal. 138; 15 L. R. A. 93; 28 Pac. 215. Where the injury threatened is irreparable, and goes to the substance of the inheri- tance, it is a matter of indifference whether the plaintiff is in or out of possession. More V. Massini, 32 Cal. 590. Where remedy at law inadequate. An adequate remedy at law existing by mo- tion, and having been pursued, a court of equity will not grant an injunction to re- strain the collection of the judgment. Reagan v. Fitzgerald, 75 Cal. 230; 17 Pac. 19H. The assistance of equity cannot be invoked, so long as the remedy by motion exists; but when the time within which a motion may be made has ex|)ired, and n< laches or want of diligence is imj)utable tc the party asking relief, there is nothing in reason or pro])riety to prevent the inter- ference of equity. Bibend v. Kreutz, 20 Cal. 109; Ede v. Hazen. 61 ('al. 360. Courts of equity interfere to do justice, only when common law tribunals are incapable of ren- dering it, and seldom or never interfere to give effect to a mere technical right: there must be substantial merit. (Iregorv v. Ford, 14 Cal. 138; 73 Am. Dec. 639. Where the efforts of the defendant to reilress the injury complained of were thwarted by the conduct of the plaintiff, and no sufficient reason appears why the remedy offered was not accepted, which was plain, speedy, and adequate, an injunction is properly refused to prevent the wrong, which is otherwise ir- remediable. Richardson v. Eureka, 110 Cal. 441; 42 Pac. 965. Where the judgment of a justice's court is void on its face for want of jurisdiction, an adequate remedy exists by motion in that court to arrest execution and stay further process on the judgment, and an injunction to restrain an execution on such judgment will be denied. Gates v. Lane, 49 Cal. 266. Only in equity, and by means of an injunction, can relief be had from continuous wrongful acts and consequent infringement of rights; and it is not necessary to prove damages. Moore V. Clear Lake Water-Works, 68 Cal. 146; 8 Pac. 816. A court of law has ample power to afford speedy and adequate relief, where judgment and execution are void on their face; and the court has entire control over process, and can arrest it, and also, upon proper application, has authority to order suspension of the execution of the writ until a motion before the court to recall or quash it can be heard. Sanchez v. Carriaja, 31 Cal. 170. A perpetual injunction against a judgment will not be allowed on grounds which could have been set up as a legal defense in the action at law. Agard v. Valencia, 39 Cal. 292. Plaintiffs, for their laches in not taking advantage of their adequate and speedy legal remedy by mo- tion to recall the execution on judgment, are not entitled to an injunction restrain- ing an execution on the judgment; a formal action is unnecessary, as well as expensive and dilatory, where a motion in court would reach the same end: where the in- jured party has an adequate and speedy remedy at law, he is not entitled to the as- sistance of a court of equitv. Moulton v. Knapp, 85 Cal. 385; 24 Pac. 803. Where the rights of a lienholder to have the prem- ises sold to satisfy his lien were directly adjudicated against the plaintiff, he can- not avail himself of any matter which he might have pleadelained of are irrepa- rable, or destructive of the plaintiff's estate in its nature and substance, nor that they are not susceptible of adequate com- peYisation in damages, facts sufficient to warrant the interposition of a court of equity are not stated. Mechanics' Foundry v. Ryall, 62 Cal. 416. Where the case made by the V)ill for an injunction to re- strain the defendant from taking posses- sion of real estate does not show irrep- arable damages, nor allege insolvency of the defendant, nor any trespass, but only the fear of it, nor show that there was no adequate remedy at law, but averreji plain- tiff's title to the property and his posses- sion, the remedy of injunction cannot be properlv invoked and maintained. Tomlin- son V. Kubio, 16 Cal. 202. The fact that the work sought to be enjoined is of a public nature, affecting the public con- venience, and that there is no doubt of the defendant's ability to respond in damages, are important matters in determining the right to an injunction. Bigelow v. Los Angeles, 85 Cal.' 614; 24 Pac. 778. The rule established under a system which per- mitted imprisonment for debt, and there- fore gave more etTiciency to the remedy at law, should be received with some modi- fications under our system; the reason of the rule being modified, the rule itself should receive corresponding qualification; in practice, it is generally difficult to prove insolvency, except after the return of an officer upon execution; practical men hesitate to rely upon the personal responsibility of the imlividual for com- pensation for serious injuries, and it com- ports more with substantial justice to both parties to restrain the trespass, rather than to leave the plaintiff to ])ursue his remedy at law. Merced Mining Co. v. Fre- mont, ^7 Cal. 317; 68 Am. Dec. 262. Where the plaintiff alleges and proves that the title to a growing crop is in himself, and that the defendant is insolvent, he is en- titled to an injunction to restrain the de- fendant from harvesting and removing it. W^st V. Smith, 52 Cal. 322. In order to sustain an injunction to j)revent the re- mo^■al of a crop, it is sufficient to show the inability of the defendant to respond in damages: absolute and complete insolvency need not be shown. Paige v. Akins, 112 Cal. 401; 44 Pac. 666. The rule that tres- jiass upon real estate cannot be enjoined. §526 INJUNCTION. 498 because a purely legal remedy sufEces for the plaintiff's "redress, does not apply where the trespasser is insolvent, and takes hay belonging to the plaintiff and feeils the same to live-stock: replevin ■would be an insufficient remedy, because a portion of the hay would be consumed before the writ could be served, and the insolvency of the defendant would make a judgment for its value worthless. Eohrer V. Babcock, 114 Cal. 124; 45 Pac. 1054. Where it is merely alleged that the plain- tiff will be damaged in the sum of five thousand dollars, and there is no allegation that the defendant is not responsible for that sum, nor that there will be any ex- traordinary impediment in the way of recovering that sum by an action at law, there is no ground stated for an injunc- tion. Gardner v. Stroever, 81 Cal. 148; 6 L. R. A. 90; 22 Pac. 483. The insolvency of the defendant need not be alleged, where the gravamen of the complaint is a threatened trespass upon land, in the na- ture of waste, which will be committed unless the defendant is restrained, and if permitted, the plaintiff will be deprived of a part of his inheritance, which could not be specifically replaced. More v. Mas- sini, 32 Cal. 590. The solvency of the defendant is an immaterial circumstance, where the injury is irreparable; and a finding that the injury would not be ir- reparable is inconsistent with a finding showing the permanent character of the work. Eichards v. Dower, 64 Cal. 62; 28 Pac. 113. Where an injunction .is sought to restrain irreparable injury to the in- heritance, from a trespass in the nature of waste, the complaint need not allege the insolvency of the defendant. Crescent City Wharf etc. Co. v. Simpson, 77 Cal. 286; 19 Pac. 426. The allegation of insolvency is not necessary to procure an injunction in cases of trespass upon mines, timber, and quarries: the right to the remedy is based upon the nature of the injury, and not upon the incapacity of the party to re- Bjiond in damages. Merced Mining Co. v. Fremont, 7 Cal. 317; 68 Am. Dec. 262. Where the defendant was removing a crop, with intent to defraud the plaintiff of his share, due for rent, a bill of complaint that does not aver either the insolvency of the defendant or that he is without any tangible property which could be made the subject of execution, is too defective to sustain an order for an injunction. Greg- ory v. 'Hay, 3 Cal. 332. Where a judgment creditor brings a bill to reach equitable assets, he must aver insolvency, or, what is equivalent to it, an e.xecution returned nulla bona : insolvency, in such cases, is, per se, a condition of relief, a fact with- out whif-h a court of equity can have no jurisdif^^tion to act in the given instance, an ultimate fact to be jiroved; hence the necessity that it be averred. Hager v. Shindlcr, 29 Cal. 47; and see Harris v. Taylor, 15 Cal. 348. Interference with water rights. An in- junction lies to restrain a threatened permanent interference with water rights, whether percolating or riparian. Bonetti V. Ruiz, 15 Cal. App. 7; 113 Pac. 118. The diversion, by a mere intruder, of the waters of a canal, by means of a ditch constructed across the land of the owner of the canal, may be enjoined by the owner as an injury to his right: the right to an injunction does not depend upon the ex- tent of the damage, measured by a money standard, and is not defeated by a finding that the plaintiff has not been actually damaged by the water taken. Walker v. Emerson, 89 Cal. 456; 26 Pac. 968. The right to the use and enjoyment of prop- erty is sufficient to have the right pro- tected against invasion by another, and the ownership of property carries with it the right to any lawful enjoyment thereof, either by using it or by disposing of it to others: it is not necessary to allege in a complaint to enjoin the diversion of water, that the plaintiff is in a position to use the water himself, or that he is in any position which gives him a right to fur- nish water to others. Moore v. Clear Lake Water-Works. 68 Cal. 146; 8 Pac. 816; Conkling v. Pacific Improvement Co., 87 Cal. 296; 25 Pac. 399. Where the diver- sion, by the defendant, of the water of a stream is against the superior right of the plaintiff, and to the extent of depriving the latter of all the water to which he is entitled, it is not necessary to prove dam- ages, to entitle him to an injunction. Mott V. Ewing, 90 Cal. 231; 27 Pac. 194. The plaintiff's right to an injunction does not depend upon the amount of injury he has received: being a riparian owner, he has a right to the flow of the entire stream, as against any diminution thereof by one not a riparian owner; and the claim of a defendant, that he has a right to divert a portion of its flow authorizes the plain- tiff to invoke the aid of equity, in order that this claim mav not ripen into a right. Gould V. Eaton, 117 Cal. 539; 38 L. R. A. 181; 49 Pac. 577; and see Moore v. Clear Lake Water-Works, 68 Cal. 146; 8 Pac. 816; Stanford v. Felt, 71 Cal. 249; 16 Pac. 900. An allegation in the complaint in an action to restrain the defendants from diverting the waters of a stream, that the defendants wrongfully claim some pre- tended and fictitious right to the use of water, does not prejudice the right of the plaintiff to an injunction. Tuolumne Water Co. v. Chapman, 8 Cal. 392. Where the defendant wrongfully obstructed the flow of water into the plaintiff's ditch, and threatened to continue to do so, the plain- tiff was entitled to a perpetual injunction, without ])roof of riamagcs. Spargur v. Heard, 90 Cal. 221 ; 27 Pac. 198. Injunction where right depends on dis- puted questions of law. Where the right for which protection is sought is dependent upon disputed questions of law which have 499 DISPUTED QUESTIONS OP LAW — INJURY MUST BE EXISTING. §526 never been settled by the courts of this state, and conpcriiiiig which there is an actual and existing; disiiutc, eiiuity will withhold relief until the questions of law have been determined by the })ro|ior court. Hughes V. Dunlap, 91 Val. i-iS.'); 27 Pac. 642. The circumstances, the conscijuences of the action, and the real equity of the case, will be considered by a court of chancery, before intcrj)osing by injunc- tion, even after the right has been estab- lished at law. Peterson v. Santa Rosa, 119 Cal. 387; 51 Pac. 5o7. Where the title of the plaintiff is disputed by the answer, courts have frequently held that an in- junction cannot be granted until the final hearing of the cause; but there is no case holding that a legal doterminatiou of the question of title, or pcuiioncy of suit for that purpose, is essential to the equitable jurisdiction of the court; the usual practice has been to ask the assistance of equity in such cases, in aid of an action at law; but there are many cases in which the powers of a court of equity have been in- voked in the first instance. Hides v. Michael, 1.5 Cal. 107; San Antonio Water Co. V. Bodenhamer, 133 Cal. 248; 65 Pac. 471. The only object in establishing title at law is to show that the right is in the plaintiff; the suit at law is only a means to accomplish a given end, and when that end is already obtained, there is no reason for doing an idle thing; and if the title of the plaintiff is conceded, there is no need of a trial at law to establish what is already admitted. Tuolumne Water Co. v. Chapman, 8 Cal. 392. Where the title of the plaintiff is disputed, and no action at law has been brought, the practice has generally been to direct an issue to be tried by a court of law and to await the action of such court u])on the issue so directed; the jurisdiction in such cases rests upon the ground of irreparable mischief, and the policy of preventing a multiplicity of suits, the remedy at law being entirely inadequate as a means of redress. Hicks V. Michael, 15 Cal. 107. A strong showing must be made before the court will grant or sustain an injunction to stop work; there must be urgent necessity, and the title and right of the plaintiff be clear, well established, and not in disjiute; and the application should be made promptly, and not delayed until large expenditures have been made. Real Del Monte etc. Min- ing Co. v. Pond etc. Mining Co., 23 Cal. 82. Injury, or threats of injury, must be present and existing. An injunction can- not be granted to allay the fears and ap- prehensions of individuals: they must show that the acts against which they ask protection are not only threatened, but will in all probability be committed, to their injury; it must also be shown that there is at least a reasonable probability that a real injury will occur if the in- junction should not be granted. Loreuz v. Waldron, 96 Cal. 213; 31 Pac. 54. No one may ;,'o into a court without having some riglit to enforce or wrong to redress; mere o])ithets, however profusely used or ve- hemently exjtressed, will not supply the place of facts in a pleading; facts must be stated, showing that a right or wrong exists; heme, a com; l.iint for an injunc- tion is insuflicient, which does not allege that the plaintiff has been damaged, nor state facts from which such a concdusion can be drawn. Wolfe v. Titus, 124 ('al. 264; 56 Pac. 1042. An injunction applies only to a threatened injury: it has no ap- plication to wrongs that have been com- ])letcd, and for which the injured party may obtain redress in an action at law. Parkinson Co. v. Building Trades Council, 154 Cal. 581; 21 L. R. A. (N. S.) 550; 16 Ann. Cas. 1165; 98 Pac. 1027. The doing of an act that has already been performed will not be restrained. Wright v. Board of Public Works, 163 Cal. 328; 125 Pac. 353. It is not necessary to show that injury is inevitable, to enable the plaintiff to main- tain an action for an injunction: such a rule would jirevent relief in a large class of cases, where the interposition of a court is absolutely necessary to prevent great and irreparable injury; even in plain cases it would seldom be possible to know that injury was certain to occur; that it is very probable, should be made to appear by the statement of facts, from which the court will be able to conclude the injury probable. Nicholson v. Getchell, 96 Cal. 394; 31 Pac. 265. A prayer for an injunc- tion to prevent a future injury is proper, where a suit is brought to test the ques- tion of priority of appropriation of water. Marius v. Bicknell, 10 Cal. 217. Where the acts complained of were committed before the commencement of the action, and there w^as no allegation of threats on the part of the defendant to do any other further act or otherwise injure the plaintiff, there is no foundation for a merely preventive injunction. Gardner v. Stroever, 81 Cal. 148; 6 L. R. A. 90; 22 Pac. 483. A plain- tiff, claiming to be the owner of a mining location, is not entitled to an injunction to restrain the defendant from mining thereon, Avhere the defendant has not mined tliereon and does not threaten to do so. Champion Mining Co. v. Consolidated Wyoming etc. Mining Co., 75 Cal. 78; 16 Pac. 513. A complaint which alleges that the defendant has agreed to furnish the plaintiff with a certain quantity of water, and is about to enter into similar contracts with others, which, in the aggregate, will be beyond the cai)acity of his resources, does not show that the plaintiff has been or will be injured, and does not entitle him to an injunction. Bank of California v. Fresno Canal etc. Co., 53 Cal. 201. Evi- dence as to the intention of a board of supervisors, as a quasi-judicial body, iu regard to some act not attem{)ted to be 526 INJUNCTION. 500> performed, should not put the machinery of the courts in motion, nor invoke a writ of injunction, and if the board proceeds in accordance with law, and lets a con- tract contrary thereto, the taxpayer is not without remedy, but he cannot come into court upon the supposition or belief that a public officer is going to disregard his oath of office and willfully violate the law. Barto v. Board of Supervisors, 135 Cal. 494; 67 Pac. 758; and see McBride v. Newlin, 129 Cal. 36; 61 Pac. 577. A public officer having control of a trust fund will not be restrained or interfered with in his duty of managing the same, except upon a clear showing that such fund is in danger of being wasted or impaired; and acts which would justify such remedy must be such as to show that liability will be incurred or an injury done by threatened or probable malfeasance for which such agent's bond or personal responsibility would afford no possible or adequate re- dress. San Francisco v. Tallant, 10 Cal. 585, An injunction cannot properly be granted to restrain the defendant from en- tering upon land sued for, or from in any manner trespassing thereon: one cannot enter or trespass upon land, of which he is already in possession; nor can he be restrained from working thereon, where he does not commit waste. Williams v. Long, 129 Cal. 229; 61 Pac. 1087. A perpetual injunction, restraining the defendant from conducting his business in unlawful man- ner, does not restrain him from conduct- ing it in a lawful manner, and he has the right at all times to adopt such means as may be within his power for such purpose. People v. Gold Run Ditch etc. Co., 66 Cal. 155; 4 Pac. 1150. Where a contract in restraint of trade is valid, and the com- plaint states a breach of it, the plaintiff is entitled to an injunction to prevent its violation, even if only nominal damages can be proven. Brown v. Kling, 101 Cal. 295; 35 Pac. 995. Where the plaintiff has proved his right to an injunction against a nuisance or other injury, it is not the duty of the court to inquire in what way the defendant can best remove it: it is the duty of the defendant to find his own way out of the difficulty; and the plaintiff is entitled to an injunction at once, un- less the removal of the injury is physically impossible. People v. Gold Run Ditch etc. Co.. 06 Cal. 155; 4 Pac. 1150. To prevent cloud on title. A court of equity will interfere by injunction to pre- vent a cloud upon a title; but it is not •leemed necessary to exercise that author- ity to the injury of strangers. Goldstein V. Kelly, 51 Cal. 301. The true test by which the question may be determineil, whether a deeil casts a cloud upon the title is this: Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a re- covery? and if such proof is necessary, a cloud exists; if the proof is unnecessary, no shade is cast by the presence of the deed. Pixley v. Huggins, 15 Cal. 127; and see Englund v. Lewis, 25 Cal. 337; Mar- riner v. Smith, 27 Cal. 649; Ramsdell v. Fuller, 28 Cal. 37; 87 Am. Dec. 103; Porter V. Pico, 55 Cal. 165 ;' Grigsby v. Schwarz,. 82 Cal. 278; 22 Pac. 1041; Roth v. Insley, 86 Cal. 134; 24 Pac. 853; Woodruff v. Perry, 103 Cal. 611; 37 Pac. 526; Russ v. Crichton, 117 Cal. 695; 49 Pac. 1043. A married woman is entitled to an injunction to restrain the sale, under execution against her husband, of real property pur- chased by her during coverture, in her own name and with her separate property: such sale casts a cloud upon her title; for, in an action of ejectment, the burden of proof would rest on her to show that the premises were purchased with her separate property or money. Tibbetts v. Fore, 70 Cal. 242; 11 Pac. 648. Where a husband conveyed property to his wife while in- debted to a third person, who secured judgments against the husband, the court may grant the wife an injunction, pend- ing the suit to determine the ownership, to restrain the sale of the property, and thus prevent a cloud on the title and a resort to an independent action to remove the cloud. Einstein v. Bank of California, 137 Cal. 47; 69 Pac. 616. The sale of a homestead under execution casts a cloud on the title, and the owner is entitled to have the sale enjoined, as it would be necessary, in an action of ejectment by the purchaser at the sale, for the owner to offer extrinsic evidence to defeat the action. Roth v. Insley, 86 Cal. 134; 24 Pac 853. The sale, by an administrator, of land sold by an intestate during his lifetime, casts a cloud upon the title of the in- testate's grantee, and will be restrained. Thompson v. Lynch, 29 Cal. 189. An order of a board of supervisors, laying out a road, which is null and void on its face, creates no cloud upon the title to the land over which it passes, and an injunction will not lie: the owner of the land will be left to his remedy at law. Leach v. Day, 27 Cal. 643. Where a board of su- pervisors made an order that a road should be opened across private lands, and the owner thereof was not given notice of the proceedings, he is entitled to an order re- straining the opening of such road. Silva V. Garcia, 65 Cal. 591; 4 Pac. 628. The deed of a superintendent of streets, after a void sale of the property to satisfy a void assessment, would itself be void, and cast no cloud upon the title, and an in- junction will not be granted to restrain the sale. Byrne v. Drain, 127 Cal. 663; 60 Pac. 433. The execution of a sheriff's deed can only be enjoined in a case where the facts alleged by the plaintiff show that, in an action of ejectment founded on the deed, he would be required to offer 501 CLOUD ON TITLE — MULTIPLICITY OF SUITS — TAXATION. §526 evidence to overcome the effect of the deed. Schuyler v. Broufjhton, G5 Cal. 252; 3 Pac. 870. A tax deed, void on its face, cannot cast a cloud upon the title of the owner of the land, and a court of equity will not enjoin the is.suanco of such void deed. Russ v. Crichton, 117 Cal. 695; 49 Pac. 1043; Bucknall v. Story, 3() Cal. 07. A tax sale for an amount greater than that authorized by law, is void, and an in- junction will lie to enjoin the execution of a deed thereon. Axtell v. Gerlaeh, 67 Cal. 483; 8 Pac. 34. A plaintiff holding & valid certificate of sale for non-})aynicnt of taxes may have a sale of the jiremises, under execution, enjoined, on the ground that such subsequent sale would be a cloud upon his title, or his right to have title; but he must show that everything has occurred which is necessary to occur in order to vest in him the right claimed: a,n allegation that the jiroperty was only sold to satisfy the aforesaid taxes, at public auction, by the tax-collector, to the one to whom the certificate of sale was delivered by the tax-collector, is insufiS- ■cient, there being no allegation that the certificate stated cither of the matters re- quired by the Political Coriii('nt, and be sustained if denied; the bill should also show that the tax-collector would not be liable to respond in damages. Ritter v. Patch, 12 Cal. 298. It does not necessarily follow, if a tax is concerac- tice in this state, while it enlarges the field of remedy, does not take away pre- existing remedies by implication.' Lor- raine V. Long, 6 Cal. 452; Hough v. Waters, 30 Cal. 309; Hills v. Sherwood, 48 Cal. 3SG; Goison v. Dunlap, 73 Cal. 157; 14 Pac. 576. The plaintiff is not entitled to an injunction to restrain the sale of jiroperty levied upon undd thit the case was a proper one for equitable relief, and the maker had the right to have the note canceled. Domingo v. Getman, 9 Cal. 97. Where the statute for the condemnation of land for road purposes is unconstitutional, or its provisions are not strictly pursued, or the com- pensation IB not tendered to the owner, a per- 510 petual injunction against opening the road will be granted. Currau v. Shattuck, 24 Cal. 431. An injunction will be granted, at the suit of th6 mortgagee of real properly, to restrain the com- mission of waste upon the premises: but, before it can be granted, it must appear that the com- mission of the threatened waste will materially impair the value of the mortgaged property, so as to render it inadequate security for the mort- gaged debt, and that the defendants are insolvent, or unable to respond in damages for the threat- ened injury. Robinson v. Russell, 24 Cal. 473. A sale by a sheriff, of real estate, upon an exe- cution, against the grantor, will, even if not effectual to pass the title to the purchaser, create a doubt as to the validity of the grantee's title^ and cast a cloud upon it, and the grantee can maintain an action to enjoin the sale. Englund v. Lewis, 25 Cal. 337. In an action by the state to procure the cancellation of a patent for land, sold without authority of law, where the person claiming under the patent is engaged in remov- ing mineral from the land, the state is entitled to an injunction to restrain the defendant from removing the same. People v. Morrill, 26 CaL 352. Courts of equity may restrain the com- mission of a trespass about to be committed, by taking down fences and opening a road througtL the plaintiff's land, in pursuance of an order of the board of supervisors, illegally made. Grigsby V. Burtnett, 31 Cal. 406; More v. Massini, 32 Cal. 590. Where the plaintiffs are owners of mining claims located in the bed of a creek, and defendants own claims situated on a hill in the vicinity, the refuse matter from which is deposited on plaintiffs' claims to such an extent as to render the working of them impracticable, plaintiffs' claims being first located, and valuable only for the gold they contain. Held, that plain- tiffs are entitled to damages for the injuries done their claims by such deposit, and to an injunction against the same in future. Logan v. Driscoll. 19 Cal. 623; 81 Am. Dec. 90, Injunc- tion will lie to stay a threatened injury to a right of way. Kittle v. Pfeiffer, 22 Cal. 485. The construction of a reservoir across the bed of a ravine, for the purpose of collecting the water flowing down the same, for use in irrigat- ing a garden of fruit-trees, gives the party con- structing the same a right of property in the reservoir, and the right to have the wafer flow into the same, of which he cannot be divested by persons subsequently entering for mining pur- poses, and a court of equity will enjoin miners thus entering from injuring the reservoir, or diverting the water therefrom. Rupley v. Welch, 23 Cal. 452. 2. When an injunction •srtll not be granted. Persons performing labor upon or furnishing ma- terials for a building erected by the lessee upon a leased lot, and who have a lien for the value thereof, are entitled to an injunction restrai;ii;ig a judgment creditor of the lessee, whose judg- ment is younger than the lien, from removing the building from the lot when the security is in- sufficient without such building. Barber v. Rey- nolds, 33 Cal. 497. If the title to a mining claina is in dispute, an injunction may be granted to preserve the property pending the litigation. Hess v. Winder, 34 Cal. 270. Where the com- plaint alleges that the plaintiffs are the owners and in possession of a tract of land: that defend- ants are insolvent, and threaten to, and wilU enter upon said land, and by excavations, em- bankments, and diverting valuable springs and streams thereon, despoil it of the substance of the inheritance, and create a cloud upon plain- tiff's title, injunction lies. Bensley v. Mountain Lake Water Co., 13 Cal. 306; 73 .A.m. Dec. 575. Where premises containing deposits of gold are held under a patent from the United States, an injunction lies to prevent persons from excavat- ing ditches, digging up the soil, and flooding a portion of the premises, for the purpose of ex- tracting the gold. Hensliaw v. Clark, 14 CaL 460: Boggs V. Merced Mining Co., 14 Cal. 279. .■Vn injunction lies to restrain trespass in enter- ing upon a mining claim, and removing auriferous quartz from it, where the injury threatens to be continuous and irreparable. It criniporls more with justice to restrain the trespass, than to leave the plaintiff to his remedy at law. Merced: 511 INJUNCTION NOT GRANTED WHEN. §526 Mining Co. v. Froinonf, 7 Cal. 317; 68 Am. Dec. 2t>'2. Plaintiff tooli 212 acres of land under the pobsissory act of this state, inclosed it, and planted it with fruit and ornamenlal trees and shrubbery. The defendants entered upon a por- tion of the tract for mining purposes, dug up and destroyed the trees and shrubbery, and threatened to continue such trespass, claiming the right so to do by paying to plaintiff the money value of the trees, etc. Plaintiff sued for damages for the trespasses committed, and asks a perpetual injunclion afjainst future tres- passes. Verdict: "We, the jury, award the plain- tiff forty-two dollars damages." Judgment ac- cordingly, the court refusing to pcrpelnate tho injunction. Plaintiff h:id recovered a similar ver- dict in a previous suit. Held, that the verdict is conclusive of the rights of the parties, and that perpetual injunction against the trespasses should issue: (hat the nature of the property, destroyed and threatened to be destroyed, is such that the injury is irreparable; that plaintiff is not bound to take the mere money value of the trees, as they may possess a peculiar value to him. Daubenspeck v. Grear, 18 Cal. 443. A threatened trespass on land, where the trespass, if com- mitted, would destroy the substance of the land, which could not be specifically replaced, will be enjoined, even if the plaintiff is in possession of the land. More v. JIassini, 32 Cal. 590. Cutting, destroying, or removing growing timber, is ground for an injunction, without an allegation of in- solvency. Natoma Water etc. Co. v. Clarkin, 14 Cal. .544. In cases of waste, if anything is about to be taken from the land, which cannot be restored in specie, it is no objection to the injunction that the party making it may pos- sibly recover what others may deem as equiva- lent in money. Hicks v. Michael, 15 Cal. 107. Against the cutting of timber the owner of real properly is entitled to an injunction. Whilst the timber is growing, it is part of the realty, and its destruction constitutes that kind of waste, the commission of which a court of equity will restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty, and has become personalty, but its title is not changed. It belongs to the owner of the land as much after as previously, and he may pursue into whosesoever hands it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or de- tained from its owner. And if he cannot find the property to enforce its specific return, he maj waive the wrong committed in its removal and use, and sue for the value as upon an im- plied contract of sale. Halleek v. Mixer, 16 Cal. 574. After a decree foreclosing a mortgage, the mortgagor in possession may be restrained from the commission of waste. Whitney v. Allen, 21 Cal. 233; Robinson v. Russell, 24 Cal. 473. In an action for a trespass upon a mining claim, where the complaint avers that defendants are working upon and extracting the mineral from the claim, and prays for perpetual injunction, and the answer admits the entry and work, and takes issues upon the titles: if the jury to whom the issue of title is submitted finds in favor of the plaintiffs, it is the duty of the court to grant the equitable relief sought, and perpetually enjoin defendants from future trespasses. Mc- ]>aughlin v. Kelly, 22 Cal. 211. Equity will re- strain a sale of property for illegal tnxes. since a tax deed is made prima facie evidence of title. Palmer v. Boling. 8 Cal. 388, and Fremont v. Boling, 11 Cal. 387, overruling De Witt v. Hays, 2 Cal. 463, 56 Am. Dec. 352, and Robinson v. Gaar, 6 Cal. 275. Where an assessment and sale for taxes would be void, and the matters making them void do not appear on the face of the tax-collector's deed, but must be shown by intrinsic proof, and the deed upon its face would be prima facie valid, injunction may be granted to restrain the sale. Burr v. Hunt, 18 Cal. 303. An injunction will not be granted at the suit of the landlord against a ten.mt to restrain the re- moval of buildings erected by the tenant, if it appears that the landlord is not entitled to the reversion, it not appearing thpA the security for the rent will be impaired by the removal. Per- rine v. Marsden, 34 Cal. 14. A court will not enjoin a tax sale, when it in apparent upon th« face of the proceedings upon which the pur- chaser must rely to make out a case to enable him to recover under the sale, that tho sala would be void, liucknall v. Story, 36 Cal. 67. Equity will not restrain by injunction the di- version of water until the party complaining is in a condition to use it. Nevada County etc. Canal Co. v. Kidd. 37 Cal. 282. Equity will not interfere by injunction to restrain naked tres- passes, where there is no waste committed. Id. Equity will not restrain the execution of a judg- ment in forcible entrj' and detainer against a husband for land claimed by the wife as her separate estate, upon the ground that siie was not made a parly to the proceedings, or that she was a sole trader. Saunders v. Webber, 39 Cal. 287. E((uity will not restrain the issuance of a patent wliicii dues not include any part of plaintiff's land, nor cloud his title, though it be admitted that the patent would not be void on its face, but would require evidence dehors to show its invalidity. Taylor v. Underbill, 40 Cal. 471. In an action by an individual to restrain the sale of tide-lands by the state, it is not sulticient to allege in the complaint that the state has no title, but it must be shown in what manner the title was lost. Farish v. Coon, 40 Cal. 33. It is not an abuse of discretion to deny the prayer for a temporary injunction when all the equities of the complaint are denied by aflidavits. Kohler v. Mayor and Common Council, 39 Cal. 510. A judgment in ejectment will not be enjoined on grounds which could have been set up as a legal defense in the action at law. Agard v. Valencia, 39 Cal. 292. An injunction should not be granted, unless equitable circumstances, beyond the allega- tion of irreparable injury, be shown, as insol- vency, impediments to a judgment at law, or to adequate legal relief, or a threatened destruction of the property, or the like. Burnett v. White- sides, 13 Cal. 15G. Nor will an injunction b« granted in aid of an action of trespass, unless it appear that the injury will be irreparable and cannot be compensated in damages. Waldron v. March, 5 Cal. 119. Where the plaintiff pretends no right to the soil, but only to a franchise, sale of the realtv cannot work irreparable damage, nor cloud the ti'tle. De Witt v. Hays, 2 Cal. 463; 56 Am. Dec. 352. An injunction will not be granted to restrain the commission of a trespass, where the party complaining has a complete and ade- quate remedy at law. Leach v. Day, 27 Cal. 643. The trustees of a mining corporation will not be enjoined from selling stock for assessments, in cases where the assessment was levied for the purpose of paying the proper and legal expenses of the company, if the assessment does not ex- ceed the .Traount allowed bv law. Sullivan v. Tri- unfo Cold etc. Min. Co., 29 Cal. 585. When the court is satisfied that a wharf erected in tide- waters, and upon soil thereunder, belonging to the state, is not a public nuisance, an injunction will be refused, or dissolved, if one has been granted. People v. Davidson, 30 Cal. 379. When there is no jiretense that any injury was occa- sioned willfully, and there is no finding of un- skillfulness, an injunction will not issue to pre- vent the exercise of a party's right to irrigate his crops, although an annoyance or injury may thereby be occasioned to the plaintiffs. Gibson v. Puehta, 33 Cal. 310. If a .Judgment by default is void, because of the absence of the seal of the district court to (he summons, or because of a defect in the certificate of the sheriff of the ser- vice of the summons, or because of irregularities of the clerk in entering the judgment, an injunc- tion to restrain the enforcement thereof does not lie. The remedy is by application to the district court to quash the execution. Logan v. Hilb'gass, 16 Cal. 200. In a case where the board of supervisors of San .Toaquin. under tho act of 1860 (Stats. 1860. p. 317), authorizing them to levy a special tax for the construction and repair of seven public highways leading from the city of Ptoekton. the fourth of which was "a road run- ning from (he limit!? of Stockton via Hamilton's Ranch, known as the Sonora Road." levied and collected the tax. and then. July 10, 1R60, passed an order locating the route of this fourth ri.nd. alone which plaintiffs lived, and afterwards as- sessed the damages to the owners of land, etc., §526 INJUNCTION. 512 but before they had obtained the right of way for the road, passed another order in March, 1661, annulling the tirst order and changing the location of the road, which rendered the lands of plaintiffs of less value. It was held that the first order was unexecuted; that no rights of plaintiflfs had vested; and that the board had power to make the second order; that the first order was not in the nature of a power exercised and exhausted, but was, at most, a proposed mode of executing a power, which could be changed at any time before rights had vested under it. Bur- kett V. Supervisors of San Joaquin, 18 Cal. 702. 'I he mortgagee of a lot on which there is a house cannot enjoin the mortgagor or his assigns Irom removing the house I'-rum the lot, except upon proof that the lot, without the house, will be an inadequate security for the mortgage debt. Buck- out v. Swift, 27 Cal. 433; 87 Am. Dec. 90. If an order of a board of supervisors laying out a road is unconstitutional, and null and void upon its face, it does not affect or cloud the title to the land over which it passes, and an injunction will not be granted to restrain the carrying of the order into effect, but the party will be left to his remedy at law. Leach v. Day, 27 Cal. 643. An order whereby the bringing of an action is restrained will be reversed, notwithstanding an undertaking on injunction has been given. King V. Hall, 5 Cal. 82. Where the complaint and evi- dence show that a defendant is in possession of a tract of land, claiming and holding under an adverse title, and the weight of evidence is in favor of his title, an injunction will not be granted on the application of a party claiming title to the land, to prevent the defendant from cutting timber. Smith v. Wilson, 10 Cal. 528. Plaintiffs file their complaint to enjoin defendants from diverting a certain quantity of the water of Bear River, alleging that their right to one thousand inches of the water of that stream, as against defendants, was adjudicated in a former action. In that action, which was trespass for the diver- sion of the water, it was alleged that this quan- tity of the water of the stream had been appro- priated by the plaintiffs for mill purposes; that such quantity was necessary for their use, and that defendants had diverted the same to their damage, etc. Plaintiffs had verdict and judg- ment for twenty-one thousand eight hundred dol- lars damages. It was held that the averments are insufficient to entitle nlaintiff to an injunc- tion, the scope of the bill being simply to en- force in equity plaintiff's alleged right to one thousand inches of water, on the sole ground that it was adjudged as their right in the former suit. McDonald v. Bear River etc. Min. Co., 1.5 Cal. 148. A vendor of real estate made a conveyance of it to the vendee, leaving a balance of the pur- chase-money unpaid. The vendee afterwards mort- gaged the same property to a third person, who had knowledge of the vendor's claim for unpaid purchase-money. The vendor brought an action against the vendee, obtained judgment for the balance due, issued execution, and sold the in- terest of the vendee in the property. The mort- gagee afterwards foreclosed his mortgage, and was about to sell the property. The purchaser at the previous sale obtained an injunction to stay the sale, which was afterwards dissolved by the court, on the ground that he had purchased merely the vendee's equity of redemption, as the sale was subject to the rights of the mortgagee. It was held that the judgment of the court below was correct, and that the claim of the purchaser to be subrogated to the equitable lien of the ven- dor, if available at all, must be asserted in a senarate equitable action. Allen v. Phelns, 4 Cal. 256. An injunction will not lie to restrain the collection of a judgment, on the ground that the judgment was for a balance of piirchase-raoney of land under covenant for a good title, while in fact the grantor had no title, as long as the purchaser against whom the judgment was taken, and who seeks to enjoin it, remains in possession of the land. Jackson v. Norton, G Cal. 187. Courts of equity will not interfere to enjoin a judgment not manifestly wrong, becauso of a defect in the evidence. Pico v. Sunol, 6 Cal. 294. A stranger to the title of real property, though in possession, cannot enjoin the purchasers mid owners thereof from setting up and enforcing their title, on the ground that it was fraudulently and illegally ac- quired by them of a third person, who does not complain. Treadwell v. Payne, 15 Cal. 496. De- fendants claiming title under a Mexican grant, and a patent issued upon its confirmation by the United States, bring an action against plaintiff's for certain premises in their occupation; plain- tiffs, claiming as United States pre-emptioners, then file their complaint in the same court to en- join defendants from introducing in evidence the survey, plat, or patent, on the trial of the eject- ment, until the determination of an action, averred to be pending in the United States cir- cuit court, by the United States against defend- ants and others claiming with them, to annul the survey, plat, and patent, on the ground of fraud in the survey, and in procuring the patent, the complaint also averring such fraud. Held, that injunction does not lie; that the patent, until set aside, is conclusive evidence of the validity of the grant, of its recognition and confirmation, and also of the regularity of the survey, and of its conformity with the decree of confirmation; and that defendants, claiming to be pre-emptioners upon land of the United States, have no standing in court to resist the patent. Ely v. Frisbie, 17 Cal. 250. Where the board of supervisors of a county allowed an account presented for services as tax-collector, and the auditor drew his warrant in favor of E. for the amount, and he assigned it to defendant M., a purchaser in good faith without notice. Held, that the county cannot en- join its collection as against M., on the ground that the account was false and fraudulent as to some of its items, and was allowed by the board, through ignorance of the facts and mistake; that the supervisors were acting within the scope of their authority, and the county cannot visit upon an innocent party the consequences of their negli- gence. El Dorado County v. Elstner, 18 Cal. 144. If the judgment and execution are void upon their face, an injunction will not be granted to restrain a sale of property levied under the exe- cution, or the issuing of any other execution on the judgment. Sanchez v. Carriaga, 31 Cal. 170. When an assessment is made upon land in the city of San Francisco, it is not within the prov- ince of a court to interfere and order a sale of the land by a decree rendered in an injunction suit, instituted by the owner of the land for the purpose of preventing a sale under an ordinance of the city. Weber v. San Francisco, 1 Cal. 455. In all cases involving simply the question of tax- ation, the issue is strictly one at common law, and equity cannot grant an injunction. Minturn V. Hays, 2 Cal. 590; 56 Am. Dec. 366. That the assessment for state and county taxes for 1855— 56, in San Francisco County, was not based on the valuation of the city assessor, as required by the act creating the board of supervisors, passed in 1851, is not ground for an injunction upon the collection of the taxes, as the party could have appealed to the board of equalization if ag- grieved. Merrill v. Gorham, 6 Cal. 41. An in- junction will not lie to restrain the collection of taxes due on property unless it be shown that the injury resulting from the collection would be irreparable. An averment of this character must appear in the complaint, and, if denied, it must be sustained at the hearing. Ritter v. Patch, 12 Cal. 298. Courts of equity are always ready to grant relief from sales made upon their decrees, where there has been irregularity in the proceed- ings, rendering the title defective, as well when the purchaser or parties interested have been misled by a mistake of law as to the operation of the decree as when they have been misled by a mistake of fact as to the condition of the prop- erty, or the estate sold, if application be made to them in suits in which such decrees are en- tered, within a reasonable time, and the relief sought will not operate to the prejudice of the just rights of others. Goodenow v. Ewer. 16 Cal. 470; 76 Am. Dec. 540. The extent of the relief in such cases is matter resting very much in the sound discretion of the court. The general rule is, that the purchaser will be released and a resale ordered, or such new or additional proceedings directed as may obviate the objections arising from those originally taken, when the conse- quences of the mistake are such that it would be inequitable, either to the purchaser or the par- 513 TAXPxVYERS — ACTIONS BY, TO ENJOIN WASTE, ETC. ^ 526a ties, to allow the sale to stand. But when tha relief is suu«ht in one urtion from u piinlui.sii made upon a mistake of law to the eft'ect oi a decree rendered in anotlier action, it seems tlial the ordinary rules as to mistakes of law should apply, and, from such, courts of e(iuity seldom re- lieve. Id. \\ here, in a suit bul'oru a justice of the peace, defendant answers, disputing plaiix- tift's claim, and afterwards, on a day set for trial, plaintiff being present, but defendant ab- sent, and no one appearing for him, the justice renders judgment for plaintiff, without cvidenco and "by default." as the docket reads, it was held that if the justice erred in his judgment the remedy is by appeal, and that such error cannot be corrected by eiiuitv. Hunter v. fioole, 17Cal. 418; Uomstock v. Clemens, 19 Cal. 77. Plaintitt' has a deed of property from H. & P. Subse- quently M., execution creditor of 11. & P., causes the sherill to levy on the property. Plaintiflf files his complaint to restrain the sale, as casting a cloud on his title. Court below found plain- tiff's deed to be, in effect, a mortgage. Held, that the bill must be dismissed; that the pur- chaser at the sheriff's sale would only acquire the interest of the judgment debtors, H. & P.; that plaintiff's right as mortgagee would be un- affected by the sale, and hence there was no necessity for equity to interfere in his behalf. Purdy V. Irwin, 18 Cal. 350. Where a party moves for a new trial and fails, he cannot, on the same facts, enjoin the judgment rendered. Collins V. Butler, 14 Cal. 22.3. Defendant, as coroner, levied on and advertised for sale the in- terest of T. in certain property in the hands of a receiver appointed in a suit between J. & T., as partners. It was held that the plaintiff was riot entitled to an injunction restraining the sale, unless the injury would be irreparable, and this must appear by a clear showing of plaintiffs right to the property and defendant's insolvency. More V. Ord, 15 Cal. 206. Plaintiff purchased certain property under a foreclosure sale, m.n'le a mortgage executed by one Pender, to which de- cree all persons in interest were parties, among them defendants here. The interest of defendants Wemple and Pender was foreclosed in the usual form. Plaintiff seeks to enjoin a sale of the premises under a decree in favor of Wemplo against Pender, to enforce a mechanic's lienr. Plaintiff was not a party to the suit of Wemple V. Pender, and has not yet got a sheriff's deed. It was held that injunction does not lie; that plaintiff is hut the purchaser of an equitv, the decree of foreclosure not cutting off the riehts of the mortgagor, Pender: that he. heing entitled to Dossession under the sheriff's deed, .ind also hav- ing the equity of redemption, could disnose of this right, and it might, under our statute, be sold for his debts; and if he chose to recog.nize the validity of Wemple's lien, or its enforcement, or sale under judgment, plaintiff cannot cimnlain, his rights not being affected by the nr.iceedings, as he was not a party. Macovich v. Wemple, 16 Cal. 104. If a judgment by default is void be- cause of the absence of the seal of the district court to the summons, or because of a defect in the certificate of th^ sheriff of the service of summons, or because of irregularitie,s of the clerk in entering the judgment, an injunction to re- strain the enforcement thereof does not lie. Tjogan v. Hillegass, 16 Cal. 200. Whpre a party, relying on the verbal asstiranee of the attorney on the ifher side that he would agree to a state- ment, did not obtain the certificate of the referee. such party cannot be considered free from fault and negligence, and he is not in a position to in- voke the aid of equity to enjoin a judgment ob- tained against him. Phelps t. Peabody, 7 Cal. 50. If a party enters judgment for too much, or before the whole amount is due. it is not conclu- sive, but only primary evidence of fraud to avoid the judgment. Patrick v. Montader, 1.3 Cal. 442, overruling 'I'aatVu v. Josephson, 7 Cal. :Jjti. \n iiijunlaint, in an action against the sure- ties, which did not allege that any damages had been so awarded, is fatally defective. Tarpey v. Shillenberger, 10 Cal. 390. Malice and want of probable cause not essential to this action. An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as an abuse of the process of the court, through malice, and without probable cause; and if the action com- plained of is destitute of these ingre- dients, then only remedy of the injured party is an action upon the injunction bond, which is specially provided by statute as protection against injury, even without malice. Robinson v. Kellum, 6 Cal. 399. Defenses. In an action on an under- taking, the defense, that the business en- joined was a public nuisance, cannot be successfully interposed: a legitimate occu- pation is sometimes a public nuisance, yet a party is entitled to the fruits of his labor until an abatement takes place, in some proper form. Cunningham v. Breed, 4 Cal. 384. Effect of voluntary dismissal. The vol- untary dismissal of the action, by the plaintiff, is an admission that he is unable to maintain the action, and therefore that he is not entitled to the injunction; and the defendants are entitled to recover from the sureties whatever damages they sustain by reason of the injunction (Frahm V. Walton, 130 Cal. 396; 62 Pac. 618); and such dismissal has the same effect as a decision of the court that the plaintiff is not entitled to the injunction, and makes the sureties on the undertaking liable. Asevado v. Orr, 100 Cal. 293; 32 Pac. 777; Frahm v. Walton, 130 Cal. 396; 62 Pac. 618. Where an injunction is dissolved by the court, the judgment is conclusive, and in a suit upon the undertaking the only question is the amount of damages sus- tained; but where the injunction is dis- solved through a dismissal of the action by the party who obtained it, there is no admission that the injunction was im- properly sued out: it evinces but an un- willingness further to prosecute the writ; and when in such a case, a suit is brought on the undertaking, it is necessary, in order to maintain the action, to show that there was no proper cause for the injunc- tion. Gelston v. Whitesides, 3 Cal. 309; Asevado v. Orr, 100 Cal. 293; 34 Pac. 777; and see Frahm v. Walton, 130 Cal. 396, 62 Pac. 618, overruling Dowliug v. Polack, 18 Cal. 625, the opinion in the latter case being to the effect, that, where the plain- tiff fails to prosecute his suit, the issues are not actually examined and passed upon; and by his failure to appear and prosecute, he virtually confesses that the result of a trial of the issues would be against him. Under such circumstances, a dismissal must be understood as pro- ceeding ujion this idea, and as a deter- mination of everything involved in the 521 DAMAGES RECOVERABLE — RECOVERY OF COUNSEL FEES. §529 case. The dismissal, in efifect, is a final judjjment in favor of the defendant, and, although it may not preclude the plaintiff from bringing a new suit, yet the rights of the parties are affected by it in the same manner as if there had been an adjudica- tion upon the merits: it terminates the proceedings, and, by its legal operation, and effect, the injunction is set aside and discharged. Damages recoverable. Where an injunc- tion is wrongfully issued as to any part of the plaintiff's demand, and it is dis- solved to that extent, the . 3. Anieiided by Stats. 11)07, p. :!.I2. the code commissioner saying, "The words 'except by the court or a judge thcrcdf; nor i-.-m it be granted' are omitted, as entirely superfluous." Injunction against unlawful acts. The coniniissioii of unlawful acts l)y ;i eorpora- 1 ion is not a jiart of its ^piioral anlainti(T possession of land, and enjoin.s the defendant from commit- ing waste on the land, also reverses the injunc- tion decree, even if the decree is not included in the record sent to the appellate court. Mc- Gairahan v. Maxwell, 28 Cal. 84. When a pre- liminary injunction is granted on plaintiff's ap- plication, the injunction must be dissolved, if a nonsuit is granted. Harris v. McUregor, 29 Cal. 1'.'4. 8. Jurisdiction law of the place. The acts of a foreign corporation ultra vires, according to the law of this state, but infra vires according to the law of its own state, cannot be restrained by our courts. O'Brien v. Chicago etc. R. R. Co., 36 How. Pr. 24; 4 Abb. Pr. (N. S. ) 381; 53 Barb. 568. 9. Effect of a motion for new trial. The pen- dency of such a motion does not suspend the in- junction. Ortman v. Di.xon, 9 Cal. 23. 10. Effect of an appeal. An apiteal from an order dissolving a restraining order does not con- tinue the order. Hicks v. Michael, 15 Cal. 107. Nor is an injunction dissolved or superseded by an appeal. Merced Mining Co. v. Fremont, 7 Cal. 130. CHAPTER IV. ATTACHMENT. S 537. Attachment, when and in what cases may issue. § 538. Affidavit for attachment, what to contain. § 539. Undertaking on attachment. Exceptions to sureties. § 540. Writ, to whom directed and what to state. § 541. Shares of stock and debts due defendant, how attached and disposed of. § 542. How real and personal property shall be attached. § 542s. Lien of attachment. § 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. § 546. Inventory, how made. Party refusing to give memorandum 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 interests of the par- ties require. § 549. When property claimed by a third party, how tried. § 550. If plaintiff obtains judgment, how satis- fied. § 551. When there remains a balance due, how collected. § 552. When suits may be commenced on the undertaking. § 553. If defendant recovers judgment, what the sheriff is to deliver. § 554. Proceedings to release attachments. § 555. Attachment, in what cases it may be re- leased and upon wliat terms. I 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. g 5.59. When writ to be returned. § 560. Release of real property from attachment. § 537. Attachment, when and in what cases may issue. 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: 1 Fair. — 34 §537 ATTACHMENT. 530 1. In an action upon a contract, express or implied, for the direct payment of money, 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 implied, against a defendant not residing in this state. 3. In an action against a defendant, not residing in this state, to recover a sum of money as damages, arising from an injury to property in this state, in consequence of negligence, fraud, or other wrongful act. passage of the amendment. O'Connor v. Blake, 29 Cal. 312. To acquire any rights Garnisliment. Post, §§ 542, 543-545. Preventing levy by counter-bond. See post, § 540. Residence. See Pol. Code, § 52. Legislation § 537. 1. Enacted March 11, 1872; based on Practice Act, § 120, as amended by Stats. 1860, p. 300, which read: "The plamtiflf, at the time of issuing his summons, or at any time afterwards, may have the property of the defendant attached as security for the satiufaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as hereinafter provided, in the following cases: 1. In an action upon a contract, express or im- plied, for the direct payment of money, which contract is made or is payable in this state, and is not secured by a mortgage, lien, or pledge, upon real or personal property, or, if so secured, that such security has been rendered nugatory by the act of the defendant. 2. In an action upon a contract, express or implied, against a defend- ant not residing in this state." When enacted in 1872, (1) the word "his," before "summons," was changed to "the," (2) the word "the" was omit- ted before "defendant give," and (3) the word "hereinafter" was changed to the words "in this chapter." 2. Amended by Code Amdts. 1873-74, p. 306, (1) in the introductory paragraph, (a) adding a comma after the word "attached," and (b) add- ing the word "the" before "defendant give"; (2) changing subd. 1 to read: "In an action upon a contract, express or implied, for the direct pay- ment of money, 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 origi- nally so secured, such security has, without any act of the plaintiff, or the person to whom the securitv was given, become [sic] valueless." 3. Amended by Stats. 1905, p. 433, (1) in the introductory paragraph, changing "after- wards" to "afterward," (2) in subd. 1, changing "becomes" to "become," and (3) adding subd. 3. Construction of statutes relating to at- tachment. All legislation bearing upon the question should be considered, and par- ticularly that portion bearing upon attach- ments as the subject-matter; the sections relating to this subject are all in pari materia, and are to be construed together, in order to ascertain the intention of the legislature; and where the question stands upon implication, the court will imply that which will uphold, rather than that which must defeat, the principal purpose of the Statute. Lick v. Madden, 25 Cal. 202. Where both the original statute and an amendment thereof contain a provision limiting the right of attachment to ac- tions on contracts "made after the pas- sage of this act," such words do not limit the right to debts contracted after the under attachment proceedings, a strict compliance with the law is required. Clyne V. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. The right to an attach- ment, and the mode of procedure for ob- taining it, are creatures of the statute, upon the terms of which they depend for their existence and regularity. Merchants' Nat. Union v. Buisseret, 15 Cal. App. 444; 115 Pac. 58. Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, in order to acquire any rights thereunder (Griswold v. Sharpe, 2 Cal. 17; Roberts v. Landeeker, 9 Cal. 262; Low v. Henrv, 9 Cal. 538; Hisler v. Carr, 34 Cal. 641; Mudge V. Steinhart, 78 Cal. 34; 12 Am. St. Keo. 17; 20 Pac. 147; Gow v. Marshall, 90 Cal. 565; 27 Pac. 422; Kennedy v. California Sav. Bank, 97 Cal. 93; 33 Am. St. Rep. 163; 31 Pac. 846; Rudolph v. Saunders, 111 Cal. 233; 43 Pac. 619; Beltaire v. Rosen- berg, 129 Cal. 164; 61 Pac. 916; Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36); but the statutory provisions should be fairly interpreted, so as to give them a consistent and efficient operation in proper cases (Roberts v. Landeeker, 9 Cal. 262; Ayres v. Burr, 132 Cal. 125; 64 Pac. 120); and the remedj' cannot be ex- tended to cases not named in the statute. Clymer v. Willis, 3 Cal. 363; 58 Am. Dec. 414; Kennedy v. California Sav. Bank, 97 Cal. 93; 33 .A.m. St. Rep. 163; 31 Pac. 846. Nature of remedy. The legislature may determ.ine in what cases an attachment may issue. Dennis v. First Nat. Bank, 127 Cal. 453; 78 Am. St. Rep. 79; 59 Pac. 777. The remedy by attachment is not a dis- tinct proceeding, in the nature of an ac- tion in rem, but is a proceeding auxiliary to an action at law, designed to secure the payment of any judgment the plaintiif may obtain (Low v. Adams, 6 Cal. 277; Allender v. Fritts. 24 Cal. 447; Rosenthal V. Perkins, 123 Cal. 240; 55 Pac. 804); it is not a part of the main action, but is a provisional, independent proceeding, ini- tiated by affidavit, which is the basis for the writ (Nail v. Superior Court, 11 Cal. App. 27; 103 Pac. 902); and is a remedy 531 SUMMONS, SECOND AND VOID — COMPLAINT — CONTRACT. §537 given only in eases of indebtedness arising upon contract. Griswold v. Sliarpe, 2 Cai. 17; Mudge v. Steinhart, 78 Cal. 34; 12 Am. St. Kep.. 17; 20 Pac. 147. The right to an attaclunent, and tiie mode of procedure for obtaining it, are the creatures of statute, depending for their existence and regu- larity upon the terms of the code (Kohler V. Agassiz, 99 Cal. 9; 33 Pac. 741); and being merely a creature of statute, the existence and operation of the attachment in any case can continue no longer than the statute provides. Loveland v. Alvord etc. Mining Co., 76 Cal. 562; 18 Pac. 6S2; Hamilton v. Bell, 123 Cal. 93; 55 Pac. 758. The plaintiff cannot claim, as matter of right, the benefit of the attachment as something growing out of or necessarily connected with the contract, as he may have the benefit of an action to recover his debt; the attachment is merely auxili- ary to the action, and the legislature may give, withhold, or limit it, at its pleasure, without impairing any substantial right of either party. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49."' Time of issuing writ. The writ may be ■issued at the time of issuing summons, or at any time afterwards. Allender v. Pritts, 24 Cal. 447; Johnson v. Miner, 144 Cal. 785; 78 Pac. 240. An attachment, issued before the summons, is a nullity. Low v. Henry, 9 Cal. 538; Henrietta Mining etc. Co. V. Gardner, 173 U. S. 123; 43 L. Ed. 637; 19 Sup. Ct. Rep. 327. Effect of second summons. An attach- ment, regularly issued at the time of the issuance of the first summons, is not vi- tiated by the failure to serve the first summons and the issuance of a second one; nor is the validity of the attachment in any way affected by the proceedings. Seaver v. Fitzgerald. 23 Cal. 85. Effect of void summons. An unauthorized and void summons will not support the writ. Hisler v. Carr, 34 Cal. 641. Suflficiency of the complaint. The plain- tiff must show affirmatively that the con- tract falls within the provisions of this section (Drake v. De Witt, 1 Cal. App. 617; 82 Pac. 982); and that the claim or debt is due. Davis v. Eppinger, 18 Cal. 378; 79 Am. Dec. 184; Kinsey v. Wallace, 36 Cal. 462. It is not necessary that either the complaint or the contract itself shall show the amount due. Kohler v. Agassiz, 99 Cal. 9; 33 Pac. 741; De Leonis v. Etche- pare, 120 Cal. 407; 52 Pac. 718. A gen- eral allegation in the complaint, that the plaintiff has, on his part, performed the contract, for the breach of which the ac- tion was prosecuted, does not imply that the plaintiff, by such performance, in- tended to discharge such contract or the defendant's liability thereunder. Hale Bros. V. Milliken, 142 Cal. 134; 75 Pac. 653. W^here the complaint shows that the ac- tion is upon contract and not in tort, it is immaterial that the prayer is for an ac- counting. Kohler v. Agassiz, 99 Cal. 9; 33 Pac. 741; De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718. Where a complaint joins two causes of action upon contract, and the plaintiff is entitled to an attach- ment on only one of them, the provision of § 540, post, that the amount of the plain- tiff's demand must be stated in conformity to the complaint, is to be construed as limited to the cause of action for which the attachment is authorized. Baldwin v. Napa etc. Wine Co., 137 Cal. 646; 70 Pac. 732. The attachment of property of a cor- poration, in a suit against certain named persons and others, designated as compos- ing the corporation, is invalid as an at- tachment of corporation property, although after the levy of the writ the comjilaint was amended so as to substitute the cor- ])oration as defendant in the place of in- dividuals originally served. Collins v. Montgomery, 16 Cal. 398. Action upon a contract. An action against a stockholder to recover his pro- jjortion of a debt of the corporation is one founded upon a contract, for which an at- tachment may issue (Kennedy v. California Say. Bank, 97 Cal. 93; 33 Am. St. Rep. 163; 31 Pac. 846; Dennis v. Superior Court, 91 Cal. 548; 27 Pac. 1031); as is also an action by the assignee of a corporation in insolvency, to recover money due from its stockholders, upon their subscriptions to the capital stock. Agassiz v. Superior Court, 90 Cal. 101; 27 Pac. 49; Kohler v. Agassiz, 99 Cal. 9; 33 Pac. 741. An as- sessment by a board of directors is not a necessary element of an attachable cause of action upon a stockholder's contract of subscription. Kohler v. Agassiz, 99 Cal. 9; 33 Pac. 741. An action for a failure to re- ceive and pay for goods according to the terms of a contract between the parties is an action founded in contract, and not in tort, and the plaintiff is entitled to an at- tachment. Donnelly v. Strueven, 63 Cal. 182. An undertaking on appeal is an ex- press contract for the payment of money, in the sense of the statute in relation to attachments, for which an attachment may issue (Hathaway v. Davis, 33 Cal. 161); as is also a bail bond in a criminal case. San Francisco v. Brader, 50 Cal. 506. Where a defendant agreed, in considera- tion of the plaintiff making a subscrijition to stock at a specified price, to repurchase same on notice, there is an express con- tract for the direct payment of money, upon which an attachment may be issued. Flagg V. Dare. 107 Cal. 482; 40 Pac. 804. The relation between principal and agent is founded upon contract, and the law im- plies a promise bj' the latter that he will pay over moneys received by him to the principal on demand; and in an action to recover moneys so collected, an attach- ment may issue (De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718); and the law implies a promise to refund money paid §537 ATTACHMENT. 532- OD a consideration which has entirely failed: such implied promise is a contract for the direct payment of money, and an attachment may issue. Santa Clara Valley etc. Co. V. Tuck, 53 Cal. 304. A license tax is in the nature of a debt due from the licensee to the county, precisely as though he had contracted with the county, and an attachment may issue. San Luis Obispo County V. Hendricks, 71 Cal. 242; 11 Pac. 682; El Dorado County v. Meiss, 100 Cal. 268; 34 Pac. 716; Sacramento v. Dillman, 102 Cal. 107; 36 Pac. 385; San Luis Obispo County V. Greenberg, 120 Cal. 300; 52 Pac. 797. The beneficiary of a fraternal order, after the death of the member, is a credi- tor who has the right of attachment. Lackmann v. Supreme Council, 142 Cal. 22; 75 Pac. 583. Indorsers, guarantors, sure- ties, and all others who undertake to pay or become responsible for the debts of an- other, are liable to attachment. Hathaway V. Davis, 33 Cal. 161. Moneys received under the terms of a contract, and due the plaintiff as a specific, definite debt, are liable to attachment. Wheeler v. Farmer, 38 Cal. 203. An action to recover money intrusted by the plaintiff to an employee, and which the defendant won from him in gambling, is not upon a contract, and a writ of attachment does not lie. Babcock V. Briggs, 52 Cal. 502. Attachment in action for damages for breach of contract. In an action for dam- ages for the breach of a contract, an at- tachment may issue, even where proof is necessary at the trial to show the amount of damages; but there must exist a basis upon which the damages can be deter- mined by proof (Dunn v. Mackey, 80 Cal. 104; 22 Pac. 64; De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718); and an attach- ment lies upon a cause of action for dam- ages for a breach of contract, where the damages are readily ascertainable by refer- ence to the contract and proof of what was done under it, and the basis of com- putation of damages appears to be reason- able and definite (Hale Bros. v. Milliken, 142 Cal. 134; 75 Pac. 653); but where the contract does not furnish the measure of the liabilitj' of the defendant, and the damages are unliquidated, an attachment does not lie. De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718; Baldwin v. Napa etc. Wine Co., 137 Cal. 646; 70 Pac. 732. Dam- ages for breach of a contract to furnish building material, resulting in loss of rents, are such as can be readily ascer- tained, and entitle the plaintiff to a writ of attachment. Hale Bros. v. Milliken, 142 Cal. 134; 75 Pac. 653. Where an agent ex- pressly contracts to sell property within a certain time, at a specified price, an at- tachment may issue in an action for a breach of such contract; and the measure of damages is the difference between the actual value at the end of the time speci- fied and the price contracted to be realized, Dunn V. Mackey, 80 Cal. 104; 22 Pac. 64. Contracts for direct payment of money. The legislature, in the use of the words- "direct payment," in the first subdivision of this section, has expressed its will in language not a little obscure, and the ad- jective "direct" is used in an unnatural or strained sense; but, in the opinion of the supreme court, a clew to its meaning is aft'orded in § 538, post, where the plaintiff must swear that the defendant is indebted to him in a certain sum, specifying the amount, this language excluding all causes of action for unliquidated sums of money. Hathawav v. Davis, 33 Cal. 161; and see Dunn V. Mackay, 80 Cal. 104; 22 Pac. 64. The official bond of a county treasurer is an obligation for the direct payment of mone.y, upon which an attachment may issue. Monterey County v. McKee, 51 Cal. 255. The liability of a tenant in posses- sion, to the purchaser at foreclosure sale, for rents or use and occupation from the day of sale to the expiration of the time for redemption, is not a liability founded on a contract express or implied, and a writ of attachment will not lie. Walker v. McCusker, 65 Cal. 360; 4 Pac. 206; Mc- Cusker v. Walker, 77 Cal. 208; 19 Pac. 382. The amount due on the contract need not necessarily appear from the contract itself ; but it must be shown bv the affidavit. Dunn v. Mackey, 80 Cal. 104; 22 Pac. 64; De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718. Contract payable in this state. In an action on a contract not made in this state,, an attachment cannot issue, unless it is ex- pressly stipulated that it shall be paid in. this state. Eck v. Hoffman, 55 Cal. 501. Such a contract is presumptively to be per- formed in the state where made (Tuller v. Arnold, 93 Cal. 166; 28 Pac. 863); and the right of attachment does not extend to such cases, unless express provision is made in the contract for payment in this state (Drake v. De Witt, 1 Cal. App. 617; 82 Pac. 982; Atwood v. Little Bonanza Quick- silver Co., 13 Cal. App. 594; 110 Pac. 344);; and a subsequent promise to pay in this state cannot affect the question in any wav, where suit is brought on the original contract. Dulton v. Shelton, 3 Cal. 206. To authorize an attachment in this state upon a contract not made in the state, it must appear by the contract itself that the- money is payable in this state. Atwood v. Little Bonanza Quicksilver Co., 13 Cal. App. 594; 110 Pac. 344. A contract for the pay- ment of money, made in another state, is presumptively to be performed there; and an attachment will not lie, if the money is not payable in this state by the contract itself. 'Tuller v. Arnold, 93 Cal. 166; 28 Pac. 863. A contract to pay commissions on sales to be made by plaintiff in another state, executed and to be performed there,. 533 SECURITY — MORTGAGE, LIEN, PLEDGE — WAIVER. §537 cannot be construed as a contract for the payment of money in this state, and will not support an attachment. Drake v. De Witt, 1 Cal. App. 617; 82 Pac. 9S2. A con- tract, made and payable in another state, cannot be changed into a new and inde- pendent contract, payable in this state, by the creditor sending a statement of the indebtedness to the debtor in this state, if such statement and the actions of the par- ties relating thereto, do not constitute an account stated. Beltaire v. Rosenberg, 129 Cal. 164; 61 Pac. 916. The issuance of an attachment, in a transitory action, does not affect the jurisdiction of the court. Hodgkins v. Dunham, 10 Cal. App. 690; 103 Pac. :ir<\. Security of mortgage, lien, or pledge. The statute has made no specification of the character of the liens necessary to fill the recjuirements of this section, and the court is not authorized to make any dis- crimination in favor of or against any particular kind of lien. Hill v. Grigsby, 32 Cal. 55. The lien must be of a fixed, de- terminate character, capable of being en- forced with certainty, and depending on no conditions. Porter v. Brooks, 35 Cal. 199. The policy that seems to have dic- tated this section is, that a creditor having a security for his debt by way of mort- gage, lien, or pledge, shall not be entitled to the lien afforded by attachment, until he has exhausted his secu^rity. Hill v. Grigsby, 32 Cal. 55; Porter v. 'Brooks, 33 Cal. 199. A lien is none the less a security T)ecause the property covered by it is with- out the jurisdiction of the courts of this state; its value there may be equal, or more than equal, to the creditor, to its value in this state. Hill v. Grigsby, 32 Cal. 55. A trust fund, created by the will of a deceased indorser of a note upon which the plaintiff sues, to be devoted to the payment of his debts, while it may be a security, is not a lien of the character con- templated by this section (Bank of Cali- fornia V. Boyd, 86 Cal. 386; 25 Pac. 20); nor is a bond executed by a defendant, and two others as sureties, to secure the plain- tiff's debt, security by mortgage of real or personal property, or pledge of personal property, and it does not deprive the plain- tiff of the right of attachment. Slosson v. Glosser, 5 Cal. Unrep. 460; 46 Pac. 276. An attachment lies upon unpaid install- ments due upon a subscription to the stock of a corporation, where no lien exists by contract, and a transferable certificate has been issued by the corporation, setting forth the terms of the subscription and the amount paid thereon; such a certificate gives as complete possession of the shares evidenced by it as if it were for paid-up stock; and the corporation, having no pos- session, has no seller's lien thereon, and -can have no general lien, except for assess- jnents, in the absence of a contract between the corporation and its stockholders, creat- ing a lien not dependent upon possession of the certificate of stock to secure the in- debtedness of the stockholders to the cor- poration. Lankershim Kanch etc. Co. v. Herberger, 82 Cal. 600; 23 Pac. 134. A landlord has no general lien upon the prop- erty of his lessee, in the possession of the lessee, on leased property, and lie is en- titled to a writ of attachment in an action to recover rent. Shea v. .Johnson, 101 Cal. 455; 35 Pac. 1023. The lien of a land- owner distraining trespassing animals is limited to two days by the act of March 7, 1878 (Stats. 1877-78, p. 179); and hav- ing no continuing relief by distraint, the act in no way conflicts with the code pro- vision limiting the right of attachment to cases where there is no securitv. Wigmore V. Buell, 122 Cal. 144; 54 Pac. 600. A party, by securing a mechanic's lien, does not forfeit or waive it by causing an at- tachment to be issued and levied upon property of the debtor to secure the same demand: the two remedies are cumulative, and both may be pursued at the same time. Brennan v. Swasey, 16 Cal. 140; 76 Am. Dec, 507. An attachment issued and levied on a debt secured by mortgage is invalid. Kinsey v. Wallace, 36 Cal. 462. A pledge of personal property is a "mortgage" thereof, within the attachment act, the word being used therein in a general sense, meaning security; and by receiving such pledge as security for a debt, the creditor forfeits his right to enforce his debt by at- tachment. Payne v. Bensley, 8 Cal. 260; 68 Am. Dec. 318. Stock of a corporation, held by one as collateral security for an in- debtedness of the defendant, is such secu- rity as will deprive the holder of his right of attachment; the value of such holder's lien, or its sufficiency to cover the amount of claim it was intended to secure, or whether or not the certificates had been actually indorsed, are matters not to be inquired into on a motion to dissolve the attachment. Beaudry v. Vache, 45 Cal. 3. A vendor's lien constitutes a lien, within the meaning of this section. Hill v. Grigsby, 32 Cal. 55. An attachment may issue in an action to recover purchase-money due under an executory contract for the sale of a patent right: the claim therefor is not secured by a vendor's lien upon the prop- erty sold, as no such lien exists under an executory contract for the sale of personal property, where title has not passed. Eads V. Kessler, 121 Cal. 244; 53 Pac. 656. The plaintiff cannot waive the security of a mortgage, and bring an attachment suit on the indebtedness. Barbieri v. Ramelli, 84 Cal. 154; 23 Pac. 1086. The lien of a com- mon carrier is abandoned by his election to attach the propertv. Wingard v. Ban- ning. 39 Cal. 543. Attaching property waives lien thereon. A lien-holder, who levies a writ of attach- §537 ATTACHMENT. 534- ment against property upon which he has a lien, thereby abandons and forfeits such lien. Wingard v. Banning, 39 C'al. 543. Unpaid purchase-money in the hands of the purchaser of mortgaged personal property, under a sale authorized by the mortgagee, is liable to attachment, in an action by a creditor of tbe mortgagor, to the exclusion of any claim of the mortgagee, whose lien is extinguished by such sale. Maier v. Freeman, 112 Cal. 8; 53 Am. St. Rep. 151; 44 Pac. 357. A pledgee who voluntarily parts with the possession of pledged goods and transfers them to a third party, who guarantees payment of his debt, thereby severs the debt from the pledge, and the lien is extinguished as to him. Treadwell V. Davis, 34 Cal. 601; 94 Am. Dec. 770. Where security has become valueless. The provision of this section, that the security must have become valueless, means that the property pledged must have ceased to have any value as a security, not that the property pledged must itself have be- come valueless, before the plaintiff can have an attachment; and where a pledgor authorized the pledgee to sell the pledged property at private sale only, without no- tice to the pledgor, any notice of such sale is thereby expressly waived, and, under the maxim, Conventio vincit legem, the agreement of the parties overcomes the provision of the law requiring a sale at public auction upon usual notice. Williams V. Hahn, 113 Cal. 475; 45 Pac. 815. An attachment may issue, under this section, though the debt was originally secured by mortgage, if such security, without any act of the plaintiff or the person to whom it was given, has depreciated in value so as to become valueless; but this section has no application to a case where the security was originally valueless or inadequate, and has not changed in value. Barbieri v. Ra- melli, 84 Cal. 154; 23 Pac. 1086. Mortgage bonds, valueless at the time of their de- livery as security, are not, in fact, secu- rity; and such bonds do not deprive the creditor of his right to an attachment. Mc- Phee V. Townsend, 139 Gal. 638; 73 Pac. 584. Where land has been alienated by the vendee, the vendor is not required to litigate with the purchaser to ascertain whether he is a purchaser for value, with- out notice, before resorting to his attach- ment: the vendee, by alienating the land, has not only interposed an obstacle in the way of enforcing the lien, but has rendered it doubtful whether the lien is not wholly defeated; and be cannot compel the vendor to solve this doubt by proceeding against the purchaser before suing out his attach- ment. Porter v. Brooks, 35 Cal. 199; .An- derson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73. Although the lien implied by law in favor of a vendor who has parted with the legal title and taken no security for the purchase-money is not a specific, absolute charge upon the property, but is personal to the vendor, and does not pass by a transfer of his claim for the purchase- money, yet where the vendor retains the legal title under an executory contract for the conveyance of the land upon payment of the purchase-money, he holds it as secu- rity for the purchase-money, in the nature of a mortgage, and the assignee of notes given for the purchase-money is entitled to the security, as an incident to the debt,, and cannot attach property thereupon, Avithout showing that the security has be- come valueless. Gessner v. Palmateer, 89- Cal. 89; 13 L. R. A. 187; 24 Pac. 608. Non-resident defendants. The residence- referred to in the attachment law is an actual as contradistinguished from a con- structive or legal residence or domicile; and where a person has a settled abode for the time being, for purposes of business or pleasure, that is his residence, within the meaning of the attachment law, notwith- standing an intention to return to the place of his constructive residence or domicile. Hanson v. Graham, 82 Cal. 631; 7 L. R. A. 127; 23 Pac. 56; Egener v. Juch, 101 Cal. 105; 35 Pac. 432. The determination of the question of the residence of a person is not affected by his honesty or dis- honesty; hence, where absconding foreign debtors, under an assumed name, purchased property in this state, and lived thereon until the commencement of an action against them- upon their indebtedness, the fact of their residence here is established, although most of the time they seemed de- sirous of disposing of the property, saying- that in the event of selling they would leave the country. Eck v. Hoffman, 55 Cal. 501. To procure an attachment against the property of a non-resident, it is only neces- sary that the complaint shall show that the action is founded upon a contract, express^ or implied, and that the affidavit shall state the facts pointed out in the second and fourth subdivisions of § 538, post. Hale Bros. V. Milliken, 142 Cal. 134; 75 Pac. 653. The service of summons and the issuance- and levy of an attachment are both requi- site to confer jurisdiction in the case of a non-resident defendant; but the proceeding- for the publication of summons is distinct and separate from the proceeding in at- tachment. Smith V. Supreme Lodge, 12^ Cal. App. 189; 106 Pac. 1102. The seizure of the property of a non-resident defend- ant will authorize constructive service by publication on him, and justify a judgment subjecting the property attached to the satisfaction of such judgment; but it will not authorize a personal judgment against such defendant. Belcher v. Chambers, 53- Cal. 635; Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73; Mudge v. Steinhart, 78 Cal. 34; 12 Am. St. Rep. 17^ 20 Pac. 147; Blanc v. Pavmaster Mining Co., 95 Cal. 524; 29 Am. St. Rep. 149; 3'a Pac. 765. The issuance and levy of an at- tachment upon the property of a non-resi- 535 PARTNERS — VESSELS — BANKS — PKIOKITY — INTERVENTION. §537 dent within this state is essential, before jurisdiction can be acquired to render any judgment at all, and then it can only be enforced against the property attached. Smith V. Supreme Lotlge. 12 Cal. Ai>p. 1S9; 106 Pac. 11U2. A writ of attachment, issued in an action sounding in tort, docs not confer jurisdiction in rem over the property of a non-resident defendant who is served with summons by publication. Mudge V. Steinhart, 78 Cal. 34; 12 Am. St. Rep. 17; 20 Pae. 147. In an action against a non-resident for the recovery of money, wliere there has been no personal service of process on the defendant within the state, and no appearance therein by him, no judgment can be given, other than one in the nature of or having the effect of a judgment in rem against such projierty of the non-resident as may have been specifi- cally attached in the action. Brown v. Campbell. 100 Cal. U35; 38 Am. St. Rep. 314; 35 Pac. 433. Where property belong- ing to non-residents is attached, prohibi- tion will not lie to restrain the jilaintiff from proceeding with the action, upon the ground that it is one in which no attach- ment will lie, there being a remedy by ap- peal from an order refusing to dissolve the attachment. Agassiz v. Superior Court, 90 Cal. 101; 27 Pac. 49. Attachment by partner, against firm. No attachment can be sued out by one part- ner against another for any matter touch- ing the partnership affairs (Wheeler v. Farmer, 38 Cal. 203); but funds in the hands of a receiver, appointed in a suit by one partner for dissolution, may be at- tached by a creditor of the partnership, at any time before the decree of dissolution, and priority gained over other creditors. Adams v. Woods, 9 Cal. 24. Attachment against vessel. An attach- ment proceeding against a vessel is distinct from an ordinary attachment under this section. Jensen v. Dorr, 157 Cal. 437; 108 Pae. 320. Attachments against banks. Under the National Banking Act, an attachment can- not issue against a national bank from a state court (Dennis v. First Nat. Bank, 127 Cal. 453; 78 Am. St. Rep. 79; 59 Pac. 777); nor, where a commercial bank has sus- pended and closed its doors, owing to insolvency in fact, does the right of at- tachment by a depositor or creditor of the bank exist. Crane v. Pacific Bank, 106 Cal. 64; 27 L. R. A. 562; 39 Pac. 215. The at- tachment of a draft will excuse a collect- ing agent for failure to collect, or to return it to the payee. Davis v. First Nat. Bank, lis Cal. 600; 50 Pac. 660. Priority of attachment liens as between creditors. A prior lien gives a prior claim, Vihich is entitled to prior satisfaction out of the subject it binds. Scrivener v. Dietz, 68 Cal. 1; 8 Pac. 609. All the equities are in favor of the most diligent, in a contest between attaching creditors. Dixey v. Pol- lock, 8 Cal. 570. The rights acquired by the attacjiment creditor, through tlie levy of the writ, are precisely those wiiich his debtor had at the time of the levy. Han- dley V. Pfistcr, 39 Cal. 283; 2 Am. Rep. 449; Bank of Ukiah y. Petaluma Say. Hank, 100 Cal. 590; 35 Pac. 170. An attachment issued before the maturity of the debt is l)rima facie void as against a subsequent attachment; but where goods were fraud- ulently purchaseil by an insolvent, the creditor ma}- attach before the maturity of the debt, and other creditors, subsequently attaching, cannot complain. Patrick y. Montader, 13 Cal. 434; and see Taaffe v. Josephson, 7 Cal. 352. A collusive attach- ment confers no riglit as against subse- quent bona fide attachments. Briody v. (Jonro, 42 Cal. 135. A subsequent attach- ing creditor cannot question the regularity of the affidavit and undertaking in the suit of the prior attaching creditor. Fridenberg V. Pierson, 18 Cal. 152; 79 Am. Dec. 162. Where a subsequent attaching creditor pro- cures the first attachment against the debtor to be set aside as fraudulent, he cannot, on that ground, claim priority over the attachment preceding his. Patrick v. Montader, 13 Cal. 434. Intervention by subsequent attaching creditor. An attachment creditor may in- tervene in prior attachment suit, and, upon a proper showing, defeat the lien of a prior attaching creditor. Speyer v. Ihmels, 21 Cal. 280; 81 Am. Dec. 157; McComb v. Reed, 28 Cal. 281; 87 Am. Dec. 115; Mc- Eldowney v. Madden, 124 Cal. 108; 56 Pac. 783; Kimball v. Richardson-Kimball Co., Ill Cal. 386; 43 Pac. 1111. Where an at- tachment is issued on a fraudulent demand, or on one which has in fact no existence, a subsequent attachment creditor may make himself a party to the proceedings, in order to defeat them. Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162. A subsequent attaching creditor, whose writ was served by way of garnishment after the maturity of the indebtedness of the garnishee to the defendant, may intervene in the suit of a prior attaching creditor of the same defendant, whose garnishment was serv'ed before the maturity of such debt, to pre- vent the paynent of the attached debt to the prior attaching creditor. Gregory v. Higgins, 10 Cal. 339. A creditor of an in- solvent corporation, who has obtained a lien by attachment, has an equitable right of intervention in a prior attachment suit brought by an insolvent holder of unpaid stock in the corporation, whose liability to the corporation is largely in excess of his claim against it, in order to prevent the sole assets of the corporation from going to such stockholder, to the exclusion of creditors who have an equitable right to have the entire property and assets, in- cluding plaintiff's liability to the corpora- tion, appropriated to the satisfaction of their demands; and the prior attachment §537 ATTACHMENT. 536 lien of such insolvent stockholder is prop- erly postponed to that of the intervener, and the equitable rights of the parties can as well be adjusted in the proceeding in intervention as by a separate direct action for that purpose. Kimball v. Richardson- Kimball Co., Ill Cal. 386; 43 Pac. 1111. An attaching creditor may intervene in a suit against the garnishee by the latter's creditor, an assignee of the attachment debtor, to determine his lien upon the fund. Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522. The judgment of an intervener against the defendant is admissible to prove his right to intervene. Coghill v. Marks, 29 Cal. 673. The burden of proof, after the intervener has proved the facts alleged to show his right to intervene, is upon the plaintiff to prove his cause of ac- tion. Speyer v. Ihmels, 21 Cal. 280; 81 Am. Dec. 157. A lien by garnishment gives the same rights to interveners as a lien by di- rect attachment. Kimball v. Richardson- Kimball Co., Ill Cal. 386; 43 Pac. 1111. Priority as to attachment and other liens. The right of stoppage in transitu is para- mount to any lien of attachment levied upon the goods, before delivery, by a credi- tor of the vendee. Blackman v. Pierce, 23 Cal. 508. The lien of the attachment of an interest of a beneficiary under a trust is subject to the equities of the parties to the trust agreement. Ward v. Water- man, 85 Cal. 488; 24 Pac. 930. Where certain creditors agree to a transfer of, property, in trust, to another creditor, the surplus, after sale, to be returned to the debtor, the lien of the transferee and those he represents is superior to that which other creditors could acquire by a subse- quent attachment. Handley v. Pfister, 39 Cal. 283; 2 Am. Rep. 449. Laborers having preferred claims cannot maintain an in- junction to prevent an attaching creditor from dismissing his attachment suit, after notice given to such creditor of their pre- ferred claims according to law; nor can they enforce a lien in equity as against such creditor, and the debtor, and the sheriff who levied the attachment. Winrod V. Welters, 141 Cal. 399; 74 Pac. 1037. An antedated note, upon which an attachment suit is based, is not fraudulent as against a subsequent attaching creditor, merely because, when the plaintiff discovered the insolvency of the debtor, he procured the latter to execute such note, payable on de- mand, as a substitute for other notes not yet due, if it also appears that the latter notes had been accepted by him upon giv- ing the defendant an extension of time for the payment of pre-existing debt, without notice of the defendant's insolvency. Brew- ster V. Bours, 8 Cal. 501. The lien of the attachment is not affected by the appoint- ment of a receiver; and the delivery of the attached property to the receiver, ap- pointed subsequently to the levying of the attachment, does not release any valid lien thereon. Von Roun v. Superior Court, 58 Cal. 358; Bories v. Union Building etc. Ass'n, 141 Cal. 74; 74 Pac. 552. The re- ceiver of an insolvent foreign corporation, claiming under the laws of another state, has no rights as against those of a domestic attaching creditor. Lackmann v. Supreme Council, 142 Cal. 22; 75 Pac. 583. The property of a building and loan association is subject to attachment at any time prior to the commencement of an action by the attorney-general to enjoin it from doing business; and the lien of an attachment is not affected by a prior adverse report of a state board of commissioners to the at- torney-general as to the hazardous business methods of such association. Bories v. Union Building etc. Ass'n, 141 Cal. 74; 74 Pac. 552. Priority as to mortgage and attachment. A chattel mortgage, recorded without any verification by the mortgagee, is void as against subsequent attaching creditors; and a subsequent verification, without record- ing the instrument so verified, can give it no validity. Alferitz v. Scott, 130 Cal. 474; 62 Pac. 735. An unrecorded chattel mort- gage is void as against subsequent attach- ing creditors of the mortgagor (Beamer v. Freeman, 84 Cal. 554; 24 Pac. 169), re- gardless of their actual notice thereof; and knowledge of its existence will not protect the holder of the chattel mortgage against an attachment by a creditor of the mort- gagor. Cardenas v. Miller, 108 Cal. 250; 49 Am. St. Rep. 84; 39 Pac. 783; Rudolph V. Saunders, 111 Cal. 233; 43 Pac. 619. A chattel mortgage, defectively acknowl- edged, is void as against an attaching credi- tor of the mortgagor, unless the property was reduced to possession by the mort- gagee, prior to the attachment. Adlard v. Rodgers, 105 Cal. 327; 38 Pac. 889. Where a mortgage of personal property was re- corded in the county where it was exe- cuted, but, after the removal of the property to another county, a subsequent recordation of the mortgage in the latter county, after an. attachment had been levied on the property in such county, can- not avail as against the attaching creditor. Fassett v. Wise, 115 Cal. 316; 36 L. R. A. 505; 47 Pac. 47. An attachment levied prior to the date of a mortgage, by the attachment debtor, takes precedence of the mortgage, and the sale under the execu- tion in the attachment suit concludes the rights of the mortgagee as effectually as it does those of the mortgagor. Reilly v. Wright, 117 Cal. 77; 48 Pac. 970. The lien of an unrecorded mortgage of real estate takes priority over the lien of an attach- ment levied after the execution of the mortgage. Bank of Ukiah v. Petaluma Sav. Bank, 100 Cal. 590; 35 Pac. 170. A mortgage of real and personal property, executed only in the manner that a mort- gage of real property is required to be exe- cuted, is void as to the personal property, 537 PRIORITY — DEED, ETC. — CREDITORS, ETC. — DISCHARGE, ETC. §537 as against subsequent attaching creditors of the mortgagor. Bishop v. McKillican, 124 Cal. 321; 71 Am. St. Rep. (iS; 57 Pac. 76. A secret lien cannot stand as against an attachment levied on a growing irop as the property of a tenant by his creditor. Stockton Sav. & L. Soc. v. Purvis, 112 Cal. 236; 53 Am. St. Rep. 210; 44 Pac. 561. In an action to foreclose a mortgage, defend- ants claiming under an attachment lien accruing after the mortgage was given are entitled to prove the e.xistence of their lien, and to show that, in consequence of certain acts of the j)laintiff, it is superior to the lien of the mortgage. Scrivener v. Dietz, 6S Cal. 1; 8 Pac. 609. Priority as to deed and attachment. An unrecorded deed is effective as against a subsequent attachment of the land as the property of the grantor, who has conveyed, in fraud of his creditors, to a purchaser for value and without notice. Morrovr v. Graves, 77 Cal. 218; 19 Pac. 489. A writ of attachment is not an "instrument," within the sense of that term as used in § 1107 of the Civil Code; therefore an un- recorded deed will prevail over an attach- ment lien; and the question of actual notice of the conveyance is immaterial. Hoag v. Howard, 55 Cal. 564; Plant v. Smythe,'45 Cal. 161; Foorman v. Wallace, 75 Cal. 552; 17 Pac. 680; Morrow v. Graves, 77 Cal. 218; 19 Pac. 489; Ward v. Waterman, 85 Cal. 488; 24 Pac. 930. A conveyance made after an attachment is subject to the lien of the attachment. Kinder v. Macv, 7 Cal. 206. Priority as to individual and firm credi- tors. Partnership property can be seized upon attachment against one of the part- ners for his individual debt, and sold; but the interest which passes by the sale is only the interest of the debtor partner in the residuum of the partnership property after the settlement of the partnership debts. Eobinson v. Tevis, 38 Cal. 611. A creditor attaching partnership property, in a suit against an individual partner, does not acquire any lien upon such property as against the superior equity of 'a sub- sequently attaching creditor of the part- nership. Burkee v. Bunn, 22 Cal. 194; Commercial Bank v. Mitchell, 58 Cal. 42; Whelan v. Shain, 115 Cal. 326; 47 Pac. 57. Where one partner purchases the interest of his copartners in the firm, agreeing to pay the firm debts, the property of the firm remains bound for such debts, just as be- fore the sale; and a creditor obtaining a lien by attachment is entitled to file a creditor's bill, without waiting for judg- ment and execution. Conrov v. Woods, 13 Cal. 626; 73 Am. Dec. 605. Where two persons, as a partnership, are also members of two other firms, and all the firms fail, and their property is attached by credi- tors, the creditors of the first-named part- nership are entitled to priority of payment out of the proceeds of the property of such partnership, over the creditors of the other two firms, notwitiistanding their priority in time to tlie other attachments. Bullock v. Hubbard, 2.{ Cal. 495; S3 Am. Dec. 130. The creditor of an individual i)artner, who has merely an attachment upon his inter- est in the partnersliij), has no such interest in an action to wind up the affairs of the liartnershi|) as to entitle him to intervene. Isaacs V. Jones, 121 Cal. 257; 53 Pac. 793. Proceedings to determine priority o,f liens. A subsequent attaching crcjitor may maintain a bill in equity against a prior attaching creditor, to show that the debt alleged by the latter was fraudulent, and to subject the lien of such creditor to his own. Wright v. Levy, 12 Cal. 257. A complaint in an action to determine the invalidity of a prior attachment lien, which fails to aver facts from which the court can see that some particular kind of lien existed, is insufficient (Shea v. .Johnson, 101 Cal. 455; 35 Pac. 1023); as is also a creditor's bill in equity, filed by an attach- ment creditor, to reach equitable assets fraudulently conveyed, or fraudulently sub- jected to a prior attachment, which simply avers that the conveyance was fraudulent, or that the defendant was not indebted to the prior attaching creditor: the facts and circumstances which will reasonably sus- tain the theory of the bill must be set forth. Kinder v. Macy, 7 Cal. 206; Castle V. Bader, 23 Cal. 75. " The priority of at- tachment liens may be determined in an injunction suit brought by a purchaser under the first attachment to prevent the sale of the property under a subsequent attachment. Porter v. Pico, 55 Cal. 165. Where the claim of the prior attaching creditor is for a bona fide debt without tinge of fraud, an objection to the attach- ment proceedings, on the ground of the impropriety of the affidavit for the attach- ment, can be successfully made only by the defendant in the attachment suit. Shea v. Johnson, 101 Cal. 455; 35 Pac. 1023. Discharge or release of attachment. Attachment is not of the nature of a com- mon-law distress of the defendant's prop- erty, to be held until he pays the plaintiff's demand; but it is held in order that it may be subject to execution; and when that purpose is impossible of accomplish- ment, the right to hold the property for that purpose ceases. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49. An attaching creditor may voluntarily release the prop- erty attached, and such release may be made without the sanction of the court: a mere direction to the sheriff is sufficient (Smith v. Robinson, 64 Cal. 387; 1 Pac. 353); and the sheriff may exact the exe- cution of an undertaking as a condition of such release, and the release will be a sufficient consideration for the undertak- ing; or the attaching creditor may ratify the act of the sheriff, after a release, and thereby validate his act. Hegser v. Row- §537 ATTACHMENT. 538 ley, 139 Cal. 410; 73 Pae. 156. The death of the defendant releases the lien of the attachment, if the case is such that execu- tion cannot issue legally after his death. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49; Hensley v. Morgan, 47 Cal. 622; Ham V. Cunningham, 50 Cal. 365; Ham v. Hen- derson, 50 Cal. 367; Day v. Superior Court, 61 Cal. 489. A collateral attack on an attachment can be maintained, only for causes which render the writ absolutely void, and not merely voidable. Mudge v. Steinhart, 78 Cal. 34; 12 Am. St. Eep. 17; 20Pac. 147. Discharge of attachment by insolvency or bankruptcy proceedings. The dissolu- tion of an attachment may be effected by voluntary proceedings in insolvency. Baum V. Eaphael, 57 Cal. 361. The discharge of the lien by insolvency proceedings, wherein the defendant is adjudicated an insolvent debtor, takes place only where the express statutory provision declares that the proceeding in insolvency shall have that effect. Vermont Marble Co. v. Superior Court, 99 Cal. 579; 34 Pac. 326; Hefner v. Herron, 117 Cal. 473; 49 Pae. 586; Elliott v. Warfield, 122 Cal. 632; 55 Pac. 409. Under the insolvency act of 1852 and the supplementary act of 1876, an attachment levied within two months prior to the commencement of the insol- vency proceedings was dissolved thereby. Cerf V. Oaks, 59 Cal. 132. Under the in- solvency act of 1880, an adjudication of insolvency dissolved, by operation of law, any attachment made within one month next preceding the commencement of the insolvency proceedings (Vermont Marble Co. V. Superior Court, 99 Cal. 579; 34 Pae. 326; Elliott v. Warfield, 122 Cal. 632; 55 Pac. 409) ; and no order of release of the attachment was necessary. Wilhoit v. Cun- ningham, 87 Cal. 453; 25 Pac. 675. The insolvency act of 1895 also provided for the dissolution of an attachment levied within one month prior to the commence- ment of insolvency proceedings. Hefner V. Herron, 117 Cal. 473; 49 Pac. 586. The property acquired by a bankrupt after the commencement of insolvency proceed- ings forms no part of the estate in bank- ruptcy; and the assignee acquires title only to such property as the insolvent owned at the time of the commencement of the insolvency proceedings. Day v. Su- perior Court, 61 Cal. 489. The dismissal of insolvency proceedings does not revive the lien of a dissolved attachment. Wil- hoit v. Cunningham, 87 Cal. 453; 25 Pac. 675. Notice of an order staying proceed- ings against an insolvent debtor need not be served on the crerlitor or officer, to give it effect and prevent the attachment. Taffts v. Manlovo, 14 Cal. 47; 73 Am. Dec. 610. An adjudication of bankruptcy, under the act of Congress of 1898, dis- solves an attachment levied within four months prior to the Cling of the petition. if the creditor causing the levy had rea- sonable cause to believe the debtor in- solvent. Alexander v. Wilson, 144 Cal. 5; 77 Pac. 706. Bankruptcy proceedings, in- stituted more than four months after the levy of an attachment, do not'deprive the attaching creditor of the right to subject the attached property to the satisfaction of his debt. HoUaday v. Hare, 69 Cal. 515; 11 Pac. 28. Judgment in attachment suits. The court, in rendering judgment in an action in which an attachment has been procured and served, has no duty to perform in reference to the attachment proceedings; nor does the sheriff act in obedience to the judgment, but to the behests of the statute, in enforcing the lien of the at- tachment by a sale of the property at- tached. Myers v. Mott, 29 Cal. 259; 89 Am. Dec. 49; Allender v. Fritts, 24 Cal. 447. Where the defendant in an attach- ment suit dies after the levy of the writ, but before judgment, and his administra- tor is substituted, and the case continued against him, judgment cannot be rendered enforcing the attachment lien by ordering the sale of the attached property to satisfy the demand. Myers v. Mott, -29 Cal. 359; 89 Am. Dec. 49; Bank of Stockton v. How- land, 42 Cal. 129. Merger in judgment lien. The lien of the attachment becomes merged in that of the judgment, and has no effect there- after, except to confer a priority in the lien of the judgment; and where there are several attachments, this priority is main- tained and enforced under the judgments; the attachment lien, as to its amount, de- pends upon the ex parte statement of the plaintiff, while that of the judgment is certain; the lien of the latter is of a higher order, if it is possible that there can be different ranks among the liens; the law does not contemplate the existence, at the same time, of two distinct liens, arising by operation of law in one action, for the security of one demand. Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 256; Scrivener v. Dietz, 68 Cal. 1; 8 Pac. 609; Anderson v. Goff, 72 Cal. 65; 1 Am. St. Eep. 34; 13 Pac. 73. But the lien of the attachment is not merged in the judgment until the latter becomes a lien; and if the judgment is not docketed so as to be- come a lien, the lien of the attachment still remains upon the property. Wein- reich v. Hensley, 121 Cal. 647; 54 Pac. 254. Though merged in the judgment, the at- tachment lien still exists so as to confer a priority in the lien of the judgment, and this result is attained, in an indirect way, by applying the doctrine of relation to the series of acts necessary to be done to transfer title to the property attached; and a sheriff's deed, executed in pursuance of an execution sale, under a judgment ren- dered in an attachment suit, takes effect from the levy of the attachment. Porter 539 MALICE — ACTIONS, PLEADINGS IN — STATUTE RUNS WHEN. §537 V. Pico, 55 Cal. 1C5. Tlio mere recovery of judgment and issuance of execution will not, in case of a garuishnient in an attaidi- ment suit, without a recei])t by the shorilf of the property, or an actual levy of the -execution, create any additional lien upon the fund garnished, nor convert the at- tachment lien into a lieu under final process. Howe v. Union Ins. Co., 42 Cal. 528; Fed. Gas. No. G776. The lien of the attachment does not revive upon the ex- piration of the two years' lien of the judg- ment. Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 256. The purpose of the attach- ment is to hold the property of the de- fendant as security for such judgment as may be rendered in the action (Bagley v. Ward, 37 Cal. 121; 99 Am. Dec. 25(3; Lehn- hardt v. Jennings, 119 Cal. 192; 48 Pac. 56); and the lien can be enforced only by sale under execution. Myers v. Mott, :29 Cal. 359; 89 Am. Dec. 49. Action for maliciously suing out writ. An action may be maintained for the malicious prosecution of the writ, or for the taking and detention of the property; and greater damages may be recovered in the former form of action than in the latter. McCusker v. Walker, 77 Cal. 208; 19 Pac. 382. Where the writ was a mere incident in an action for the prosecution •of an unfounded claim, the use made of the writ aggravates the damages result- ing from the prosecution of such action. Berson v. Ewing, 84 Cal. 89; 23 Pac. 1112. An attachment for damages resulting from negligence is a gross abuse of the process. -Griswold v. Sharpe, 2 Cal. 17. An attach- ment for a debt secured by mortgage subjects the plaintiff, who has knowledge of such security, to liability for malicious prosecution. Kinsey v. Wallace, 36 Cal. 462. But the issue of an attachment, and a levy of the same on goods, where there is a legal cause of action existing, is not such a duress of goods as to give a cause of action for damages in favor of the one "whose goods are seized. Kohler v. Wells Fargo & Co., 26 Cal. 606. Where the plaintiff commenced suit and attached be- fore the debt became due, and thus pre- vented the defendant from fulfilling his part of the contract, damages for abuse of the process may be claimed by cross- complaint. Waugenheim v. Graham, 39 Cal. 169. Actual and exemplary damages may be awarded, but they should not be unreasonably or disproportionately large. Kinsey v. Wallace, 36 Cal. 462. Where a person, having a good cause of action against another, willfully sues for a greater amount than is due, and attaches the property of the other, and puts him to charges, he is liable. Weaver v. Page, 6 Cal. 681; Clark v. Nordholt, 121 Cal. 26; 53 Pac. 400. A nominal plaintiff is liable, ■where he gives his confederate uncondi- tional permission to use his name in "bringing suits, and the evidence shows the prosecution to have been malicious on the part of his confederate: ignorance of the facts in a particular suit cannot ex- cuse su(di nominal plaintiff. Kinsey v. Wallace, 36 Cal. 462. Pleadings in action for maliciously suing out writ. Ajit words, used to describe a cause of action for malicious prosecution, rather than an action for the unlawful tak- ing and detention of propert}', must be pre- sumed to have been used by design, upon the election of the plaintiff to maintain his suit. McCusker v. Walker, 77 Cal. 2U8; 19 Pac. 382. The complaint must allege that the writ w-as sued out and prosecuted with- out probable cause. King v. Montgomery, 50 Cal. 115. Where, in an action for the malicious prosecution of an attachment against the plaintiff by the defendant, in the name of another, the complaint alleges, in stating what the defendant did in the issuing and levying of the writ, that the de- fendant and another filed their undertaking, conditioned to pay all the costs and dam- ages that the plaintiff might sustain, the gravamen of the complaint is the malicious prosecution, and the allegations with re- gard to the umlertaking cannot be con- strued as constituting a separate cause of action. Sharp v. Miller, 54 Cal. 329. In order to entitle a plaintiff to recover in an action for the malicious prosecution of the writ, he must allege and prove that the writ was executed by attaching the property: the mere malicious suing out of such a writ without probable cause, with- out levying it upon the property of the party against whom it is issued, does not authorize a recoverv. Maskell v. Barker, 99 Cal. 642; .34 Pac. 340. An allegation that the judgment in an attachment suit was rendered and entered in favor of the defendant, is sufficient, without alleging further, that the judgment w^as in full force and effect, and not vacated, set aside, reversed, or appealed from. Carter v. Paige, 80 Cal. 390; 22 Pac. 188. Statute of limitations. The statute of limitations begins to run against a claim for damages for maliciously procuring the levy of an attachment, at the time of the levy; the period of limitation being two years (Sharp V. Miller, 54 Cal. 329; 57 Cal. 431; McCusker V. Walker, 77 Cal. 208; 19 Pac. 382; and see Wood v. Currev, 57 Cal. 208; Tavlor V. Bidwell, {io Cal.^489; 4 Pac. 491); "but the statute does not begin to run against a claim for damages for the malicious prosecution of a civil action upon an un- founded claim, until the action is termi- nated, although an attachment may have issued in the action. Berson v. Ewing, 84 Cal. 89; 23 Pac. 1112. Priority of foreign assignment over subsequent domestic judgment. .Sie note 17 L. K. A. 8"). Determination of status by residence of debtor in case of foreign attachment. See note 17 L. R. A. 87. What is non-residence for the purpose of at- tachment. See note 19 L. R. A. 665. §538 ATTACHMENT. 540 Eight of possession as between receiver and creditor levying attachment on property. See note 20 L. R. A. 392. Bight of attachment as affected by appoint- ment of foreign receiver. See note 23 L. R. A. 52. Priority between assignee for creditors and at- taching creditors. See note 26 L. K. A. 593. Effect as against attachment of pledge or other transfer of corporate stock not made in books of company. See note 67 L. K. A. tiolj. When non-residence of person intending to leave permanently begins. See note ILKA (X. S.) 77^. Waiver of lien of chattel mortgage by attach- ment. See note 24 L. K. A. (N. S. ; 49u. CODE COMMISSIONERS' NOTE. 1. Gener- ally. The proceedings by attachment are statu- tory and special, and must be strictly pursued. When a party relies upon his attachment lien as a remedy, he must strictly follow the provisions of the statute. Roberts & Co. v. Landecker, 9 pal. 262. The remedy is given only in cases of indebtedness arising upon contract. Griswold v. Sharp, 2 Cal. 17; Dulton v. Shelton. 3 Cal. 206. The remedy is not a distinct proceeding in the nature of an action in rem, but is auxiliary to an action at law, designed to secure the payment of any judgment the plaintiff may obtain. Low V. Adams, 6 Cal. 277. An attachment issued on a complaint which was a printed form, with the blanks filled up by the clerk at the request of plaintiff, but no name was signed to the com- plaint till next day, and after other attachment on the same property, when it was signed by the clerk, with the name of plaintiff's attorney. It was held, that the action of the clerk, though not correct, was only an irregularity, and the com- plaint was not void. Dixey v. Pollock, 8 Cal. 570. An attachment, regular upon its face, is not void because the complaint does not state a cause of action warranting the issuance of an attachment. McComb v. Reed, 28 Cal. 281; 87 Am. Dec. 115. An attachment issued before the issuance of the summons is void. Low v. Henry, 9 Cal. 538. Where G. & Co., concealing their insolvency, obtained an extension from their creditor B., and, before the maturity of the notes B.. apprehending that G. & Co. would fail, and that the other creditors of G. & Co. would ex- haust their assets by attachment, obtained, by an arrangement with G. & Co., an antedated note for the amount due him at the date thereof by G. & Co., on which suit was commenced by at- tachment, and a levy made upon the property of G. & Co. Held, that B.'s attachment and claim was valid against the subsequent attaching credi- tors, the case not being one of fraud. Brewster V. Bours, 8 Cal. 501. Where goods were fraudu- lently purchased by an insolvent, the creditor may attach before the maturity of the debt. Patrick V. Montader, 13 Cal. 434. An attachment is- sued upon a debt not due is void as against creditors whose rights are affected by it. Pat- rick V. Montader, 13 Cal. 434, cited supra, goes upon the ground that the debt UT3on which the attachment issued was equitably due, and hence does not conflict with this rule. Davis v. Eppin- eer, 18 Cal. 378; 79 Am. Dec. 184. A creditor having a lien by attachment only, may file a creditor's bill. Conroy v. Woods, 13 Cal. 626; 73 Am. Dec. 605. 2. When an attachment cannot issue. If the debt is secured by a vendor's lien, an attachment cannot issue. Hill v. Grigsby, 32 Cal. 55. But a vendor's lien for the unpaid purchase-monev of a tract of land, where the land has been con- veyed by the vendee to a third party, is not a lien securing the debt within the meaning of the terms used in § 120 of the Practice Act (Code, § 537). Porter v. Brooks, 35 Cal. 199. An at- tachment will not lie when the debt is secured by mortgage. Kinsey v. Wallace, 36 Cal. 463. The term "mortgage" is used in its most gen- eral signification, and includes a pledge of per- sonal property. Payne v. Bensley, 8 Cal. 260: 68 Am. Dec. 318. 3. Partnership, attachment affected by. An at- tachment cannot be sued out by one partner- against another for any matter touching the part- nership aft'airs. Wheeler v. Farmer, 38 Cal. 203. The commencement of an action by one partner, against his copartners, for a dissolution and ac- count, and for an injunction and receiver, and aa appointment of a receiver by the court, does not prevent a creditor from proceeding by attach- ment and gaining a priority over other creditors, until a final decree of dissolution and order of distribution. Adams v. Woods, 9 Cal. 24. Where one partner buys out his copartners, agreeing to pay the debts of the firm, the partnership re- mains bound for firm debts, and the lien of firm creditors attaching is perferred to the lien of an individual creditor of the remaining creditor at- taching first. Conroy v. Woods, 13 Cal. 626: 7a Am. Dec. 605. Where two shareholders in a joint-stock com- pany sold to the company goods to a large amount, and afterwards, during the existence of the com- pany, sold their stock to A., and assigned their account for such goods to B., who sued such company on said account by attachment, it was held, that the action could not be maintained, there having been no final settlement, no balance struck, and no express promise on the part of the individual members to pay their ascertained por- tion. Bullard v. Kinney, 10 Cal. 60. The credi- tor of an individual partner obtains, by an attachment of the partner's interest, no lien but what is subject to the general lien of partners and creditors. Robinson v. Tevis, 38 Cal. 611. An attachment against V. may be levied on his interest in grain, and to effect this the sheriff may take possession of the entire quantity of grain; but he can sell, under the execution on the judgment that may be recovered in the ac- tion, only the undivided interest of V., the pur- chaser at the sale becoming tenant in common with the other part-owners. Bernal v. Hovious, 17 Cal. 541; 79 Am. Dec. 147. 4. Stoppage in transitu. Attachment as af- fected by. The right of stoppage in transitu is paramount to any lien by attachment, and may be exercised to defeat such lien by the creditor of the vendee. Blackman v. Pierce, 23 Cal. 508. 5. Priority of attachments. Patrick v. Mon- tader, 13 Cal. 434; Spever v. Ihmels. 21 Cal. 280; 81 Am. Dec. 157. The writ affects per- sonal propertv from the time of the lew only. Taffts V. Maniove. 14 Cal. 47; 73 Am. De'c. 610. In McComb v. Reed, 28 Cal. 281, 87 Dec. 115, where two attachments had been levied on the same property, it was questioned whether a junior attaching creditor could successfully attack the validity of the first attachment, on the ground that the complaint did not contain a cause of action upon a contract, e.xpress or implied, for the direct payment of money. A junior attach- ing creditor cannot avail himself, in the affidavit or undertaking, of a prior attaching creditor. Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162. 6. The judgment in an attachment suit need not direct the sale of the property held under the attachment: it is the duty of the sheriff to sell it. Low V. Henry, 9 Cal. 538. § 538. Affidavit for attachment, what to contain. The clerk of the court mu.st issue the writ of attachment, upon receiving an affidavit by or on be- half of plaintiff, showing: 1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counterclaims) upon a contract, expres.s or implied, for the direct payment of money, and that such contract was made or is payable in this state, and that the payment of" 541 AFFIDAVIT TO CONTAIN WHAT — WRIT, ISSUANCE OP. §538 the same has not been secured by any mortj,'age or lien upon real or per- sonal property, or any pletlLje of personal property, or, if orij?inally so secured, that such security has, without any act of the plaintiff, or the per- son to whom the security was j^iven, become valueless; or, 2. That the defendant is indebted to the plaintiff (specifyin<^ the amount of such indebtedness over and above all legal set-offs or counterclaims) and that the defendant is a non-resident of the state ; or, 'S. That plaintiff's cause of action against defendant is one to recover a sum of money as damages (specifying the amount thereof) arising from an injury to property in this state in consequence of the negligence, fraud, or other wrongful act of defendant, and that the defendant is a non-resident of the state ; and 4. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant. undertaking (McCusker v. Walker, 77 Cal. 208; 19 Pac. 382); but he is uot authorized to issue the writ, where there is no state- ment in the affidavit of the facts plainly required by the statute to be set forth therein'. Merchants' Nat. Union v. Buis- seret, 15 Cal. App. 444; 115 Pac. 58. The clerk must proceed with reasonable dili- gence to make up and deliver to the plain- tiff the i)rocess applied for, on proper presentation of the papers; and he must issue the attachments in the order in which they are demanded, and his failure to do so is actionable; but he is not bound to delay the issuing of other writs against the same party, if the party making the prior demand is uot in attendance to re- ceive his writs when ready for delivery, who thus, through his own negligence or misfortune, loses his prioritv. Lick v. Madden, 36 Cal. 208; 95 Am. Dec. 175. Several writs may be issued upon a single affidavit and undertaking to different counties. Martinovich v. Marsicano, 150 Cal. 597; 119 Am. St. Rep. 254; 89 Pac. 333. The affidavit and all the papers requisite to a writ of attachment may be prepared at the same time the complaint is prepared, so long as the affidavit and the undertaking in the attachment are not filed in adNance of the original complaint, and the writ not issued in advance of the summons, to which it is incident. Wheeler v. Farmer, 38 Cal. 203. The prepayment of fees is not necessary upon the issuance of the writ, unless they are demanded by the clerk. Lick v. Madden, 25 Cal. 202. A defenilant, who files a cross-complaint, may have an attachment against the money and property in controversy, still held by the plaintiff. Interlocking Stone Co. v. Scribner, 19 Cal. App. 344; 126 Pac. 178. The affidavit. It is not necessary that the re(iuircd affidavit be signed by the party making it; but the oath may not be taken out of the county, over the tele- phone: such an affidavit is a nullity, and the attachment issued thereon is void. Levy without process, a misdemeanor. See Pen. Code, § IKi. Fact of issuing attachment not to be made J)UbliC. See Pol. Code, § 1032. Afladavit. Post, § 557. Legislation § 538. 1. Enacted March 11, 1872; based on Practice Act, § 121, as amended by Stats. 1860, p. 301, which read: "The clerk of the court shall issue the writ of attachment upon receiving an affidavit by, or on behalf of, the plaintiff, which shall be filed, showing: 1. That the defendant is indebted to the plaintiff (specify- ing the amount of such indebtedness, over and above all legal setoffs and counterclaims), upon a contract, express or implied, for the direct pay- ment of money, and that such contract was made -or is payable in this state, and that the payment of the same has not been secured by any mort- gage, lien, or pledge, upon real or personal prop- erty; or, 2. That the defendant is indebted to the plaintiff (specifying the amount of such in- debtedness as near as may be, over and above all legal set-offs or counterclaims), and that the de- fendant is a non-resident of the state ; and, 3. That the sum for which the attachment is asked is an actual, bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought and the action is not prosecuted to hinder, delay, or defraud, any creditor or creditors of the defendant." When enacted in 1872, (1) in the introductory paragraph, (a) the word "shall" was changed to "must," (b) the word "the" was omitted before "plaintiff," and (c) the words "which shall be filed," after "plaintiff," were omitted; (2) in subd. 1, the word "and," after "set-offs," was changed to "or"; (3) in subd. 3, the comma was omitted after the word "actual." 2. Amended by Code Amdts. 1873-74. p. 307, (1) in the introductory paragraph, adding a ■comma after the word "attachment" ; (2) in subd. 1, (a) omitting the comma after the word "in- debtedness," (b) adding, before the word "lien," the word "or," and omitting, after "lien," the words "or pledge," (c) changing the word "and," before "personal property," to "or," and adding, after these words, the clauses, "or any pledge of personal property, or, if orijrinally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; or"; (3) in subd. 2. striking out the words "as near as may be," after "indebtedness"; (4) changing subd. 3 to read as subd. 4 now reads. 3. Amendment by Stats. 1901, p. 139; un- ■constitutional. See note ante, § 5. 4. Amended by Stats. 1905, p. 434. Issuance of the writ. The issuance of the writ is not a judicial proceeding, but & ministerial act ujjon the jiart of the clerk, which he is bound to j)erform upon the filing of the statutory affidavit and §538 ATTACHMENT. 542- Fairbanks v. Getehell, 13 Cal. App. 458; 110 Pac. 331. Allegations of facts in affidavit. The facts required by the statute must be truly stated in the affidavit; and it is immate- rial that the omitted facts are stated in the complaint (Fisk v. French, 114 Cal. 400; 46 Pac. 161); but the affidavit need not necessarily have all the facts set out in respect to the contract, which are neces- sary to be stated in the complaint. Weaver v. Hayward, 41 Cal. 117. It is not necessary for the affidavit to state the probative facts requisite to establish the ultimate facts required by the statute to be shov^'u as the basis of the writ (Wheeler V. Farmer, 38 Cal. 203) ; nor is the same particularity of statement required in the affidavit for the issuance of the writ as is required in the complaint. Bank of Cali- fornia V. Boyd, 86 Cal. 386; 25 Pac. 20; O'Conor v. Roark, 108 Cal. 173; 41 Pac. 465; O'Conor v. Witherby, 112 Cal. 38; 44 Pac. 340. The affidavit 'is fatally defect- ive unless it states that the attachment is not sought and the action is not" prose- cuted to hinder, delay, or defraud any creditor of the defendant, or either of them, when there are more than one. P^jaro Valley Bank v. Scurich, 7 Cal. App. 732; 95 Pac. 911. The falsity of the affi- davit can be raised only by the defendant in the attachment suit (Shea v. Johnson, 101 Cal. 455; 35 Pac. 1023); and its regu- larity cannot be attached collaterally by a stranger to the suit. Scrivener v. Dietz, 68 Cal. 1; S Pac. 609. Affidavit, by whom made. An affidavit, made by a business agent of the plaintiff, need not aver that he is an agent for the collection of the debt, that he makes it in behalf of the plaintiff, or that the facts are peculiarly within his knowledge or that there is any reason why the plaintiff' does not make it. Simpson v. McCartv, 78 Cal. 175; 12 Am. St. Eep. 37; 20 Pac' 406. Where the plaintiff sets out his representa- tive capacit}" in the title of the action at the head of the affidavit, but in the body thereof he refers to himself as "the plain- tiff in the above-entitled action," and also states that "the defendant in said action is indebted to him," the pronoun "him" referring to himself, there is a sufficient compliance with the requirements of the section: and the use of the conjunction "and," instead of the statutory disjunctive "or," in the phrase, "over and above all legal set-offs or counterclaims," does not constitute insufficiencv. O'Conor v. Roark, 108 Cal. 173; 41 Pac. 465; O'Conor v. Witherby, 112 Cal. 38; 44 Pac. 340. Where the facts are stated positively and without qualification in the affidavit, it will be presumed that they are within the knowl- edge of the affiant. Simjison v. McCarty, 78 Cal. 175; 12 Am. St. Rep. 37; 20 Pac. 406. Contract for direct payment of money. It is not necessary that the affidavit shall state whether the contract is express or implied : it is sufficient if it appears there- from that there is an indebtedness arising on contract for the direct payment of money. Flagg v. Dare, 107 Cal. 482; 40 Pac. 804; Norcross v. Nunan, 61 Cal. 640; Simpson v. McCarty, 78 Cal. 175; 12 Am. St. Rep. 37; 20 Pac. 406. An affidavit in the alternative form, that the indebted- ness is upon an express or implied con- tract, is insufficient. Hawley v. Delmas, 4 Cal. 195. The indebtedness is the princi- pal element required in the affidavit, and when that appears by a direct statement,, the affidavit is sufficient, when there is nothing therein inconsistent with the statement. Bank of California v. Boyd, 86 Cal. 386; 25 Pac. 20; Flagg v. Dare, 107 Cal. 482; 40 Pac. 804; O'Conor v. Roark,. 108 Cal. 173; 41 Pac. 465; O'Conor v. Witherby, 112 Cal. 38; 44 Pac. 340. Amount of Indebtedness. The amount of the indebtedness to the plaintiff is the principal and all-important element in the affidavit (Finch v. McVean, 6 Cal. App. 272; 91 Pac. 1019); and it must be shown by the affidavit; and it may be so shown,, although it does not appear from the con- tract itself, and is not specially stated in, the complaint. Dunn v. Mackey, 80 Cal. 104; 22 Pac. 64. The amount of the demand, in the statement, need not be identically the same as the sum stated in the complaint; set-offs and counterclaims must be stated in the affidavit, but they need not be stated in the complaint. De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718. An affidavit directly alleging a specific indebtedness in a principal sum is- not vitiated by referring to interest and attorneys' fees, without further specifica- tion, but is sufficient to sustain the at- tachment, at least to the extent of the principal sum. Tibbet v. Tom Sue, 122 Cal. 206; 54 Pac. 741. Where the principal and legal interest were demanded in the com- plaint, and the nature of the indebtedness is so sufficiently stated in the affidavit as to show that it draws legal interest from the date of its maturity, there is no sub- stantial difference between the affidavit and complaint in respect to interest. O'Conor v. Roark, 108 Cal. 173; 41 Pac. 465; O'Conor v. Witherby, 112 Cal. 38; 44- Pac. 340. The affidavit may be for any definite sum alleged in the complaint to be due, notwithstanding the prayer also demands a further sum (De Leonis v. Etchepare, 120 Cal. 407; 52 Pac. 718); and it may be for such portion of the amount claimed in the complaint as the plaintiff is able to specify as indebtedness for which the law authorizes an attachment. Bald- win V. Nai)a etc. Wine Co., 137 Cal. 646; 70 Pac. 732. Claim must be unsecured. An affidavit as to a resident, which fails to state that the payment of the claim has not been secured as required by the first subdivision, of this section, is insufficient (Sparks v.- 543 DISCHARGE OF WRIT — UNDERTAKING EXCEPTIONS. §530 Bell, 137 Cal. 415; 70 Pac. 281; Scrivener V. Dietz, G8 Cal. 1; 8 Pac. 609); as is also an affidavit in the alternative, stating, in substance, that the p;i\ment of the indchl- edness has not been snciircil, or if secured, that such security ha > become valueless, as it does not state th;'t no security was ever given, but merely vhat the same had become valueless. Wilke v. Cohn, 54 Cal. 212; Merced Bank v. Morton, 58 Cal. 360; Harvey v. Foster, 64 Cal. 296; 30 Pac. 849; Winters v. Pearson, 72 Cal. 553; 14 Pac. 304. An affidavit stating the general con- clusion that the mortgage given to secure the indebtedness has become valueless, is sufficient to justify the clerk in issuing the writ. Barbieri v. Ramelli, 84 Cal. 174; 24 Pac. 113. The use, in the affidavit, of the word "upon," instead of "of," in the statutory phrase, "jjledge of personal pro])- ertv," is immaterial. O'Conor v. Withcrby, 112 Cal. 3,S; 44 Pac. 340. Against a non-resident. An affidavit for attachment against a non-rosident need not state that the pa^'ment of the claim is not secured by mortgage, litii; or pledge, or that the claim is upon a con- tract: that the action is upon a contract, express or implied, need only appear from the complaint in the action (Kohler v. Agassiz, 99 Cal. 9; 33 Pac. 741); and where it is stated that the indebtedness is upon an express contract, the affidavit is sufficient in that respect (Hale Bros. v. Milliken, 142 Cal. 134; 75 Pac. 653); but an averment in the affidavit, respecting the residence of the defendant, is not con- elusive: the fact mav be inquire Cal. 205. 2. Form of affidavit. The omission from the- affidavit to a statement that the sum for which the writ is a.skod is "an actual bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not soupht and the action is not prosecuted to hinder, de- lay, or defraud any creditor or creditors of the debtor," does not render the attachment issued a nullity against subsequent attaching creditors. Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162. An affidavit for attachment is insufficient which states that the defendant is indebted to the plaintiff upon an "express or implied con- tract." Hawlcy v. Dolmas, 4 Cal. 195. 3. Who may take advantage of defects in affi- davit. See subd. 2 of note to the preceding sec- tion. 4. Express contract. An undertaking on ap- peal is an express contract. Hathaway v. Davis, .S3 Cal. 161. § 539. Undertaking on attachment. Exceptions to sureties. Before issuin*? the writ, the clerk mnst require a written undertaking on the part of the plaintiff, in the sum not less than two hundred dollars and not exceed- ing the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant recovers judgment, 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 exceeding the sum specified in the under- taking, and that if the attachment is discharged on the ground that the plaintiff was not entitled thereto under section five hundred and thirty- seven, the plaintiff will pay all damages which the defendant may have sus- tained by reason of the attachment, not exceeding the sum specified in the undertaking. At any time after the issuing of the attachment, but not later than five days after actual notice of the levy thereof, the defendant may except to the sufficiency of the sureties. If he fails to do so, he is deemed to have w^aived 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 §539 ATTACHMENT. 544 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 judge or clerk must issue an order vacating the writ of attachment. Undertaking, generally. Post, § 1057. Sureties. , ^ c -ck 1. Justification of. Ante, § 49.";; post, § o55. 2. Qualifications of. Post, § 1057. Undertaking to discharge attachment. Post, Counter-undertaking to prevent levy. Post, § 540. Dismissal of action on. Clerk to hand under- taking to defendant. Post, § 581, subd. 1. Legislation g 539. 1. Enacted March 11, 1872; based on Practice Act, § 122, as amended by Stats. 1860, p. 301, which read: "Btfore issuing the writ, the clerk shall require a written under- taking on the part of the plaintiff, in a sum not less than two hundred dollars, not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant re- cover judgment, 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 exceeding the sum speeded in the undertaking." When enacted in 1872, (1) the word ••ehall" was changed to "must," and (2)^ the word "and" was added before "not exceeding. 2. Amended by Code Amdts. 1873-74, p. 308 (approved March 24, 1874), (1) changing the words "a sum" to "an amount," (2) changing the word "two" to "three," before "hundred dol- lars," (3) omitting the words "if the defendant recover judgment," after "effect that," (4) add- ing the words "including reasonable attorneys' fees," after "all costs," (5) changing the word "awarded" to "adjudged," and (6) adding the words "if the attachment be wrongfully issued' at the end of the section. 3. Amended again by Code Amdts. 1873-74, p. 406 (approved March 30, 1874), to read: "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 plain- tiff, with sufficient sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defend- ant, and all damages which he may sustain by reason of the attachment, not exc. eding the sum specified in the undertaking. Within five days :ifter service of the summons in the action, the defendant may except to the sufficiency of the sureties. If he fails to do so he is deemed to have waived all objections to them. When ex- cepted 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." 4. Amendment by Stats. 1901, p. 139; un- constitutional. See note ante, § 5. 5. Amended by Stats. 1907, p. 708; the code commissioner saying, "The amendment makes the sureties answerable if the attachment is dis- charged on the ground that the plaintiff was not entitled thereto under § 537, and permits the de- fendant to except to the sufficiency of the sure- ties at any time after the issuing of the attach- mert not later than five days after actual notice of the levy." The undertaking. A writ of attachment is iniprofierly i.ssued, and voiil, unless it is supported by an undertaking conforming substantially to the requirements of the statute. Kern Valley Bank v. Koehn. 1.57 Cal. 237; 107 Pac. 111. The undertaking is an original, independent contract on the part of the sureties, and must be con- strued in connection with the statute authorizing it (Fraukel v. Stern, 44 Cal. 168) ; and it is the antecedent of the at- tachment, and accompanies the affidavit, which must be made before the writ is is- sued; and if no writ is issued, the under- taking is null fnd void. Benedict v. Bray, 2 Cal. 251; 56 Am. Dec. 332. The code does not require the undertaking to be executed, in form, to the defendant, but specifies the conditions it shall contain; and an undertaking executed to the state of California may be sued upon by the defendants, who are the real parties in interest. Taaffe v. Eosenthal, 7 Cal. 514. The amount of the undertaking is based upon the amount specified in the affidavit, and not upon the amount demanded in the complaint (Baldwin v. Napa etc. Wine Co., 137 Cal. 646; 70 Pac. 732); and where it is in a larger sum than that required, it is not objectionable. Wigmore v. Buell, 122 Cal. 144; 54 Pac. 600. The question pre- sented on a motion to increase the amount of the undertaking is one of fact, calling for the exercise of judicial discretion, which cannot be controlled by mandamus. American Well etc. Co. v. Superior Court, 19 Cal. App. 497; 126 Pac. 497. An under- taking is fatally defective, where it fails to contain the required stipulation con- cerning the discharge of the attachment. Kern Valley Bank v. Koehn, 157 Cal. 237; 107 Pac. 111. The undertaking must show that the sureties are either householders or freeholders; and a writ issued upon an undertaking, unaccompanied by the re- quired affidavit, is irregularly and improp- erly issued, and should be discharged upon application. Tibbet v. Tom Sue, 122 Cal. 206; 54 Pac. 741. An undertaking exe- cuted after the lev}- of the writ, and the dismissal of the attachment by the plain- tiff, is void. Benedict v. Bray, 2 Cal. 251; 56 Am. Dec. 332. Where, in an undertak- ing, the word "thousand" was omitted from the words "two thousand two hun- dred and twenty-five dollars," and it was apparent from the whole undertaking and the statute that the omitted word was in- tended to be inserted, it will be supplied at the trial, without reforming the bond. Frankel v. Stern, 44 Cal. 168. A bond ex- acted by an officer having no authority to require it, is void. Benedict v. Bray, 2 Cal. 251; 56 Am. Dec. 332. State, county, or city, not reciuired to give undertaking. An undertaking given to procure an attachment upon the suit of the state, or any county or city, is in con- travention of the policy of law, without consiileration, and void, both as a statu- tory undertaking and a common-law bond (Morgan v. Menzies, 60 Cal. 341); and an attachment for a license tax due to a county may be issued without an under-, taking, in an action by the county to col- 545 SURETIES — LIABILITY, ETC., OF — VOID LEVY. §539 li'ct the same. San Luis Ohispo County v. UrecnlHTf,'-, liiU ( ;il. ilOd; ."):J I'ac. 7i)7. Amendment of undertaking. Before the amendment in 1909 of § ."j5S, neither au un- (lertakinjj nor an aflidavit was amendable, if not sullicient to sustain tlie writ. Tihbet V. Tom Sue, 122 Cal. 2(IG; .")4 Pac. 741. Liability of sureties for wrongful at- tachment. The liMl)ility of the sureties is limited by the terms and conditions of their contract, and cannot be e.xtendetl by implication bevond its terms (EMer v. Kutner, 97 Cal.' 490; 32 Pac. .563; Ilisler v. Carr, 34 Cal. 641); and thwigh they are not liable for damages caused by the care- lessness of the sheriff, yet they are liable for the amount of the depreciation in value of the jiroperty by reason of the at- tachment, exclusive of any damage caused by the willful and negligent acts of the sheriff (Witherspoon v. Cross, 135 Cal. 96; 67 Pac. 18); but they are not liable as trespassers for seizure or detention of proj>erty attached by a sheriff, merely be- cause of their act in signing the bond. McDonald v. Fett, 49 Cal. 33 I. The meas- ure of damages in an action upon an undertaking is the amount which will com- pensate for all detriment caused proxi- mately thereby, or which would be liable to result therefrom; but sureties do not undertake to become liable for remote and possible consequences, which, in some con- tingencies, might follow. Elder v. Kutner, 97 Cal. 490; 32 Pac. 563. The measure of damages for the wrongful seizure and detention of personal property by attach- ment is the market value of the use of the property during the time of the detention, not its value to the plaintiff. Hurd v. Barnhart, 53 Cal. 97. Damages may be awarded for the depreciation in the value of goods during the time they are held under attachment, estimated upon a show- ing of their value when taken and their value when returned. Frankel v. Stern, 44 Cal. 168; Witherspoon v. Cross, 135 Cal. 96; 67 Pac. 18. The measure of dam- ages, in case of attachment of personal property, is the difference in value of the property when seized and its value when restored, with the loss of its use mean- while; and there is more reason for ap- plying such rule respecting the measure of damages in the case of an attachment of stock, whose principal value consists in its selling value, than in the case of per- sonal property generally: not only is the selling value destroyed by the attarh- ment, but all of the profits and dividends to accrue from it are impouiuled e<]ually with the stock itself. McCarthv Co. v. Boothe, 2 Cal. Ayip. 170; 83 Pac. 175. The impairment of the plaintiff's credit, his inability to sell the land levied upon, or to contract a loan upon the security of the land, are not proximate, but remote, consequences of the attachment. Heath v. Lent, 1 Cal. 410; Elder v. Kutner, 97 Cal. 1 Fair. — 35 490; 32 Pac. 563. Damages accruing from a wrongful attachment of real estate, where the owner's i)ossessioii was not dis- turbed, cannot be more than nominal. Heath V. Lent, 1 Cal. 410. The questions of motive and jirobable cause are immaterial in au action against the sureties on an undertaking; and the fact that the at- tachment was malicious does not affect their liability. Ebler v. Kutner, 97 Cal. 490; 32 Pac. 5G3. Counsel fees pai.l in defending an attachment suit constitute l)art of the damages, where the writ is im- j>ro]>erly i)rosecuted (Ah Thaie v. Quan Wan, 3 Cal. 216); but the sureties are not liable for attorneys' fees in an attachment suit, if such fees have not been actually paid: the damage accrues from the pay- ment, and not from incurring the liability to pay. Elder v. Kutner, 97 Cal. 490; 32 Pac. 563. Fees paid to a sheriff to procure the release of a lien of attachment are included in the damages coverefendant in an attachment Kuit is ailmissihle in evidenee to establish the dissolution of the attachment and to show the defendant's ri<:ht to the return of the property, in an action ajjainst the officer for dama<;es for failure to return the property. Aifreltinfjer v. Whelan, ]33 Cal. IIU; i).j Pac. 125. On api.eal, the release must V)e presumed to have been made before the return of the writ, in a collateral action, ^A•here the pleading's do not allege the contrary. Maskev v. Lack- mann, 146 Cal. 777; 81 Pac. 115. § Effect of unrecorded deed on subsequent attachment. .\n unrccordi-d dccil takes jtrecedonce over a sulisequcnt attacliment or judgment aj^'ainst the grantor. Wolfe V. Lan<;ford, 14 Cal. App. :i.')9; 112 Pac. 2U3. CODE COMMISSIONERS' NOTE. 1. Return- day. .No return (l.iy iicid Ik. inserted in the writ, (ieiiin V. TonipkinK, 1'2 15arb. "JCO-'JHT ; 1 Code Hep. (.\. S. ) 4 1 .J ; Cauiiuun v. Tuuipl^iio*! 1 C'nui; Rep. (X. S.) 12-16. 2. Omissions. The attachment is not void if it omits to state that "it was issued in an ac- tion then pending." Lawton v. Reil, 34 How. Pr. 4G.') ; Lawton V. Kiel, 51 Harlj. :iii. 3. Form and effect of undertaking on release of attachment. See Curiae v. Packard, 2'J Cal. 194. 541. Shares of stock and debts due defendant, how attached and dis- posed of. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon, and all debts dne such defendant, and all other property in this state of such defendant not exempt from execution, may be attached, and if judg- ment be recovered, be sold to satisfy the judgment and execution. or serve notice on the corporation that he holds them as such assignee or pledgee: one purchasing, at execution sale, shares of a corporation, standing on the books of the corporation in the name of the judgment debtor, is entitled to have the certificate of such shares reissued to him, if, at the time of the jiurchase, he acts in good faith, and without notice that an outstanding certificate has been as- signed or pledged to some person other than the judgment debtor. West Coast Safety Faucet Co. v. Wulff, 133 Cal. 315; 85 Am. St. Ecp. 171; 65 Pac. 622. An execution purchaser of stock, with notice that it has been assigned as security, takes it subject to the rights of the assignee. Weston V. Bear River etc. Mining Co., 6 Cal. 425; Naglee v. Pacific Wharf Co., 20 Cal. 529; People v. Elmore, 35 Cal. 655; Winter v. Belmont Mining Co., 53 Cal. 428; Farmers' Nat. Gold Bank a\ Wilson, 58 Cal. 600; West Coast Safety Faucet Co. V. Wulff, 133 Cal. 315; 85 Am. St. Rep. 171; 65 Pac. 622. Interests in real property. Land con- veyed in trust to jtay certain creditors, reserving the right to surplus profits, where not made in fraud of creditors, is not subject to attachment in an action against the grantor. Heath v. Wilson, 139 Cal. 362; 73 Pac. 182. The vendor's equitable lien on real estate, after absolute conveyance thereof, is not subject to levy and sale on execution: the indebtedness for the purchase price of real estate may be levied upon, but the vendor's equitable lien, attaching by virtue of indebtedness, is extinguished by the transfer of the in- debtedness. Ross V. Heintzen, 36 Cal. 313; Baum V. Grigsbv, 21 Cal. 172; 81 Am. Dec. 153; Lewis V. Covillaud, 21 Cal. 178; Williams v. Young, 21 Cal. 227. Attachment. 1. Building material, when not subject to. See post, § llfiG. 2. Co-operative business association, prop- erty of subject to. See Civ. Code, § G53f. 3. Debts and credits, etc., how. I'ost, § 542, subd. 5. 4. Moneys arising from mutual-assessment contract, exemptions from. See Civ. Code, § 453k. 5. Stocks or shares, how. Post, § 542, subd. 4. 6. Vessel, tackle, furniture, etc. See post, §§ 817 et seq. Garnishment, generally. Post, §§ 543-545. Legislations 541. Enacted March 11, 1872; based on Practice Act, § 124, which had the word "profit" instead of "profits." Shares of stock in corporation. The at- tachment of corporate stock impounds all profits and dividends thereon. McCarthy Co. V. Boothe, 2 Cal. App. 170; 83 Pac. 175. A transfer of unregistered corporate stock takes precedence over a subsequent attachment or execution levied on the stock for the debt of the vendor, in whose name it stands upon the books of the corporation. National Bank v. Western Pacific Ry. Co., 157 Cal. 573; 27 L. R. A. (N. S.) 987; 21 Ann. Cas. 1391; 108 Pac. 676. Pledged stock, standing on the books of the corporation in the name of the pledgor, is attachable as his property. Strout V. Natoma etc. Mining Co., 9 Cal. 78. Stock-certificates pledged as collat- eral security, but not transferred on the books of the company, and the possession of which the pledgee does not retain, may be attached as against the pledgor: such pledge is void as to attaching creditors. McFall V. Buckeye etc. Ass'n, 122 Cal. 468; 68 Am. St. Rep. 47; 55 Pac. 253. The assignee or pledgee of stock-certifi- cates, in order to protect his rights as against attachments levied thereon as the property of his assignor or pledgor, must have the certificates reissued to himself, 5 541 ATTACHMENT. 550 Property not subject to attachment. Public buildings are not subject to at- taohnioiit. Dennis v. First Nat. Bank, 127 Cal. 453; 78 Am. St. Rep. 79; 59 Pac. 777. A license or privilege, personal in char- acter, is not subject to attachment. Lowen- berg V. Grcenebaum, 99 Cal. 162; 37 Am. St. Rep. 42; 21 L. R. A. 399; 33 Pac. 794. A patent right, not being tangible prop- erty, but an incorporeal right, is not sub- ject to attachment (Peterson v. Sheriff, 115 Cal. 211; 46 Pac. 1060); but in pro- ceedings supplementary to execution the execution tlebtor may be compelled to make an assignment, to a receiver, of his patent right. Pacific Bank v. Robinson, 57 Cal. 520; 40 Pac. 120. Money deposited in bank, the proceeds of life-insurance policies payable to a widow as beneficiary, is not subject to execution. Holmes v. Marshall, 145 Cal. 777; 104 Am. St. Rep. 86; 69 L. R. A. 67; 2 Ann. Cas. 88; 79 Pac. 534. A broker's seat in a stock and exchange board is not subject to attachment. Lowen- berg V. Greenebaum, 99 Cal. 162; 37 Am. St. Rep. 42; 21 L. R. A. 399; 33 Pac. 794. Salaries of public officials, whether state, county, or municipal, are not subject to attachment. Ruperick v. Baehr, 142 Cal. 190; 75 Pac. 782. A franchise, held by an individual, to collect toll on a toll-road is not subject to attachment (Gregory v. Blanchard, 98 Cal. 311; 33 Pac. 199); nor is the franchise of a street-railroad, except when other- wise provided by statute. Risdon Iron etc. Works v. Citizens' Traction Co., 122 Cal. 94; 68 Am. St. Rep. 25; 54 Pac. 529. An assigned chose of action is not sub- ject to attachment. Walling v. Miller, 15 Cal. 38; Mclntyre v. Hauser, 131 Cal. 11; 63 Pac. 69. Judgments cannot be levied upon and sold under execution as personal property capable of manual delivery; it is only the debt itself that may be attached: there is no provision for attaching or levying on evidences of debt. McBride V. Fallon, 65 Cal. 301; 4 Pac. 17; Dove v. Doughertv, 72 Cal. 232; 1 Am. St. Rep. 48; 13 Pac. 621; Latham v. Blake, 77 Cal. 046; 18 Pac. 150; 20 Pac. 417; Hoxie v. Bryant, 131 Cal. 85; 63 Pac. 153; Fore v. Majilove, 18 Cal. 436. Homestead. Where property impressed with the character of a homestead is worth more than the homestead exemption, a levy can only be made for the purpose of inaugurating proceedings for the ad- measurement of the excess in value. Lub- bock V. MeMann, 82 Cal. 226; 16 Am. St. Rep. 108; 22 Pac. 1145; and see Ackley V. Chamberlain, 16 Cal. 181; 76 Am. Dec. 516; Bowman v. Norton, 16 Cal. 213; Bar- rett V. Sims, 59 Cal. 615; Sanders v. Rus- sel, 86 Cal. 119; 21 Am. St. Rep. 26; 24 Pac. 852; Dam v. Zink, 112 Cal. 91; 44 Pac. 331; Lean v. Givens, 146 Cal. 739; 106 Am. St. Rep. 79; 81 Pac. 128. Property, after sale on execution, left in the possession of the execution debtor, is not thereafter liable to attachment by other creditors; nor, after the execution sale, is change of possession required to make valid the transfer as against his creditors. Matteucci v. Whelan, 123 Cal. 312; 69 Am. St. Rep. 60; 55 Pac. 990. Debts not due; negotiable instruments. Debts not due are not subject to garnish- ment (Early v. Redwood City, 57 Cal. 193); nor can property be taken in attach- ment, that is not liable to seizure under the execution when issued. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49. Credit must exist at the time of levy of attachment, or no lien is created; hence, although a defendant may have earned a portion of the amount payable upon the conclusion of his contract with the garnishee, if the amount thereof is not payable until the conclusion of the contract, there is no credit which may be attached. Early v. Redwood City, 57 Cal. 193. Where pay- ment is to be made when property is de- livered at a specified place, no debt is created until delivery is made: an attach- ment served at the place of delivery, be- fore the property is delivered, is premature and invalid. Maier v. Freeman, 112 Cal. 8; 53 Am. St. Rep. 151; 44 Pac. 357. If, at the time the attachment is served upon the garnishee, the defendant in the at- tachment can maintain against him an ac- tion of debt or indebitatus assumpsit, the liability of the garnishee is transferred from the defendant to the plaintiff in the attachment suit, and not otherwise. Hassie v. G. L W. U. Congregation, 35 Cal. 378. Before the maturity of a promissory note, the indebtedness of the maker thereon is not the subject of attachment: the obli- gation of the maker is not to the payee named in the note, but to the holder, who- ever he may be. Gregory v. Higgins, 10 Cal. 339. Money on deposit in a bank, upon which negotiable certificates have been paid for the full amount, is not sub- ject to attachment. McMillan v. Richards, 9 Cal. 365; 70 Am. Dee. 655. The gar- nishee is not liable to any creditor of the defendant by virtue of an attachment levied after the debt has become barred as to such defendant by the statute of limitations. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. Contingent contracts and interests. Con- tracts, contingent and complicated, which cannot be taken into the possession of the sheriff, cannot be levied upon and sold under execution, and, apparently, are not subject to attachment (Crandall v. Blen, 13 Cal. 15) ; neither are contingent in- terests subject to attachment. Tuohy v. Wingfield, 52 Cal. 319; Howell v. Foster, 65 Cal. 169; 3 Pac. 647; Farnum v. Hefner, 551 PROPERTY NOT SUBJECT TO ATTACH. M EXT. §541 79 Cal. 575; 12 Am. St. Rep. 174; 21 Pac. 955; Ward v. Waterman, 85 Cal. 488; 24 Pac. 930. An assignment may be legally made of money to become due upon the completion of work according to the terms of a contract; and upon the completion of such work the assignor has no attachable interest therein. Early v. Redwood City, 57 Cal. 193. The equitable interest of a subcontractor in a portion of a building contract assigned to him by the contractor, which is to be paid in installments upon certain contingencies is not subject to at- tachment (Ilassie v. G. I. W. U. Congre- gation, 35 Cal. 378); nor is the equitable right, of the assignee of a vendee under an executory contract for the conveyance of land, upon the breach of a contract, to recover the amount paid on the purchase price. Redondo Beach Co. v. Brewer, 101 Cal. 322; 35 Pac. 896. A mortgagee's in- terest in mortgaged land is not an estate, either before or after condition broken, and is not subject to attachment. Mc- Gurren v. Garrity, 68 Cal. 566; 9 Pac. 839. The purchaser of mortgaged premises does not, by his purchase, become indebted to the mortgagee, nor does he become a debtor by virtue of an agreement with his vendor to pay the mortgage debt; henve, he cannot be garnished by a creditor of the mortgagee. Hartman v. Olvera, 54 Cal. 61. Property in the custody of the law. Property in the custody of the law is not subject to attachment. Yuba County v. Adams, 7 Cal. 35; Clymer v. Willis, 3 Cal. 363; 58 Am. Dec. 414. Thus, money in the hands of an administrator, before decree of distribution, is not subject to garnish- ment. Estate of Nerac, 35 Cal. 392; 95 Am. Dec. 111. Funds in the hands of a re- ceiver, master in chancery, trustee of court, assignee in bankruptcy or insolvency, ex- ecutor or administrator, are not subject to garnishment before the order of dis- tribution is made by the court. Dunsmoor V. Furstenfeldt, 88 Cal. 522; 23 Am. St. Rep. 331; 12 L. R. A. 508; 26 Pac. 518; Adams v. Haskell, 6 Cal. 113; 65 Am. Dec. 491. Money collected by a sheriff on exe- cution is not a debt due the plaintiff in execution, but is in the custody of the law until finally and properly disposed of, and is not the subject of attachment. Clymer V. Willis, 3 Cal. 363; 58 Am. Dec. 414. Money deposited with a sheriff to procure the release of an attachment is in tlie cus- tody of the law, and is not the subject of attachment; but where the parties, b}' a mutual agreement, and without any order of the court, take the money out of the hands of the sheriff and lend it to third parties, the latter are not bailees of the sheriff, and the money is no longer in the custody of the law. Hathaway v. Brady, 26 Cal. 581. Money deposited with the clerk of the court, for the benefit of credi- tors, by order of the court, is in the cus- tody of tile law until the determination of the suit by a decree fixing the share of each creditor, and is not subject to at- tachment. Dunsmoor v. Furstenfeldt, 88 Cal. 522; 22 Am. St. Rep. 331; 12 L. R. A. 508; 26 Pac. 518. The assets of a bank in liquidation under the Bank Commissioners' Act are not subject to attachment. Crane V. Pacific Bank, 106 Cal. 64; 27 L. R. A. 562; 39 Pac. 215. Under the National Banking Act, no attachment can issue against a national bank from a state court. Dennis v. First Nat. Bank, 127 Cal. 453; 78 Am. St. Rep. 79; 59 Pac. 777. The claim of a Federal court, that money in the possession of its clerk is held by him as an officer of the court, precludes an ef- fective garnishment thereof in a court of this state; there being no common arbiter between state and Federal courts, comity between them becomes a necessity, and is a law not to be disregarded; and the Federal court, when first in possession of the subject of litigation, must be left to determine when its possession and control thereof has ended. Swinnerton v. Oregon Pacific R. R. Co., 123 Cal. 417; 56 Pac. 40. Property taken from a prisoner, on his ar- rest by an officer charged with that duty, is not subject to garnishment. Coffee v. Haynes, 124 Cal. 561; 71 Am. St. Rep. 99; 57 Pac. 482. Attachment of shares of corporate stock. See note 52 .\m. St. Kop. 474. Garnishment of stock in foreign corporation. Sf<. note 55 L. R. A. 79 7. Bight of creditor who is also a stockholder of an insolvent corporation to attach property of corporation as affected by his own statutory lia- bility. See note 41 L. R. A. (N. S.) 987. Garnishment of money due on negotiable in- strument. See note 55 Am. Dec. 08. Liability of promissory note to seizure and sale under attachment. See note 15 Ann. Ca.s. 980. Whether money in officer's hands is subject to attachment. See note 55 Am. Dec. '264. Liability of cars of foreign railroad to attach- ment. See notes 104 .\m. St. Rep. 663; 2 Ann. Cas. 349; 11 Ann. Cns. 910. Liability to attachment at suit of contractor's creditors, of materials furnished to be used in construction of building. See note -Vnn. Cas. 1913A, 876. Equitable interest in personal property as sub- ject to attachment. See note 11 Ann. Cas. 669. Attachment of funds held by trustee in bank- ruptcy. See note 13 Ann. Cas. 810. Garnishment of unearned salary. See note 20 L. K. A. (N. S.) 912. Garnishment of husband's interest in wife's legacy or distributive share in decedent's estate. See note 47 L. R. A. 3. Garnishment of unliquidated claims. See note 59 L. R. A. 353. Garnishment of distributive shares in dece- dent's estate before settlement. See note 59 L. R. A. 387. CODE COMMISSIONERS' NOTE. 1. What may or may not be attached. The interest of a pledgor is subjert to execution, and is reached by serving and enforcing a garnishment on the pledgee, not bv a seizure of the pledge. Tread- well V. Davis,' 34 Cal. (iOl ; 94 Am. Dec. 770. Money in the hands of an administrator, after decree made, distributing it to an heir or devisee, may be garnished by a creditor of the distributee. Estate of Nerac, 35 Cal. 392: 95 Am. Dec. 111. An equitable demand is not the subject of gar- nishment: it reaches only legal dibts.— debts upon which the defendant, at the time of garnishment, § 542 ATTACHMENT, 552 could have maintained, under the common-law 2. Extent of the seizure. Fitzgerald v. Blake, practice, an action of debt or assumpsit. Has- 42 Barb. 513; 28 How. Pr. 110. If, at the time sie V G. I. W. U. Congregation, 35 Cal. 378. of the levy, there is great uncertainty as to the Funds in the hands of a receiver are not subject value of the property attached, and it subsequently to attachment. Adams v. Haskell, 6 Cal. 113; appears that its value was greatly in excess uf 65 Am. Dec. 491 ; Yuba County v. Adams. 7 the demand sued for, it does not follow that the Cal. 35. The indebtedness of a maker upon a levy was excessive. Sexey v. Adkison, 40 Cal. promissory note, before its maturity, is not the 408. subject of attachment. His obligation is not to 3. Letters and correspondence. The officer is the payee named in the note, but to the holder. not authorized to seize letters; and where he did. Nor can such indebtedness, after maturity, be and took copies of business letters, and looked attached, unless the note is, at the time, in the into the correspondence of a firm, it was held a possession of the defendant, from whom its de- gross abuse of his powers. Hergman v. Dettle- livery can be enforced on its payment upon the bach, 11 How. Pr. 46. attachment. Gregory v. Higgins, 10 Cal. 339. § 542. How real and personal property, shall be attached. The sheriff to whom the writ is directed and delivered, must execute the same without delay, and if the undertaking mentioned in section five hundred and forty be not given, as follows : 1. Real property', standing upon the records of the county in the name of the defendant, must be attached, by filing with the recorder of the county a copy of the Avrit, together with a description of the property attached, and a notice that it is attached; 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, belonging to the defendant, and held by any other person, 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 (naming 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 the residence of either, if within the county, a copy of the writ, with a similar description and notice. If there is no occupant of the propertj^ a copy of the writ, together with sucn 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 delivery, must be attached by taking it into custody. 4. Stocks or shares, or interest in stocks or shares, of any corporation or company, must be 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 property, not capable of manual delivery, must be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits and other per- sonal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal prop- erty in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ, except in the case of attachment of growing crops, a copy of the writ, together with a description of the prop- 553 REAL AND PERSONAL PROPERTY ATTACHED HOW. §542 erty attached, and a notice that it is attached, shall he recorded the same as in the attaclinient of real profjerty. to he surrendered to the new sherifT. Sagely V. Livermorc, 45 Cal. 613 (but this case arose under the law in force prior to 1883); and see Perrin v. McMann, 97 Cal. 52; 31 Pac. 837. The lien of an attachment is not affected by any irregularities in the attachment, but such irregularities are waived by the defendant, where he ap- pears and answers without taking ad- vantage of them by motion or otherwise. Porter v. Pico, 55 Cal. 165. The lien of an attachment, properly levied, is not divested by the failure of the officer to make a proper return of the writ. Ritter v. Scannell, 11 Cal. 239; 70 Am. Dec. 775. Where one writ of attachment was placed in the hands of the sheriff between nine and ten o'clock Sunday evening, and an- other writ, against the same defendant, was placed in the hands of a deputy a few minutes after midnight, the sheriff not knowing the fact; and the first levy was made on the last writ at one o'clock Mon- day morning, and the second levy, under the first writ, was made by the sheriff at eight o'clock of the same morning, the sheriff was held not guilty of negligence in executing the first writ, no special cir- cumstances being shown. Whitnev v. But- terfield, 13 Cal. 335; 73 Am. Dec.' 584. It is the duty of the officer, after he has once entered upon the execution of the writ, to complete its execution with diligence. Wheaton v. Neville, 19 Cal. 41. The sheriff must execute the writ with all reasonable celerity; but he is not held to the duty of starting to execute it on the instant he receives it, without regard to anything else than its instant execution; unless some special reasons of urgency exist; reason- able diligence is all that is required; but this reasonable diligence depends upon the particular facts in connection with the duty. Whitney v. Butterfield, 13 Cal. 335; 73 Am. Dec. 584. The sheriff has no right to sell attached property at private sale, or to authorize another to do so, and for such default he and his sureties are liable on his official bond; and it makes no dif- ference that the property was sold for its highest market value; and the proceeds of such sale can go merely in reduction of damages in an action by the attaching creditor against the officer. Sheehy v. Graves, 58 Cal. 449. The decision of the trial court as to the sufficiency of the levy will not be reversed on appeal, where the evidence is conflicting. Rudolph v. Saun- ders, 111 Cal. 233; 43 Pac. G19. Matters relied on as o]>erating to dissolve the writ must be specially pleaded by the sheriff, in an action against him for a violation of his duty in the service thereof. McComb V. Reed, 28 Cal. 281; 87 Am. Dec. 115. Liability for wrongful seizure. A third party, seizing the goods of the defendant Attachment lien, officers. Civ. Codi^. § 3057. Leviable interest in mortgaged property. Civ. Co>'h\ (;§ 'JiU'.s-'jitTd. Fraudulent transfers. Civ. Code, §§ 12 '2 7. :u:U. 3439-3442. Legislation 8 542. 1. Enacted March 11, 1873; based on Practice Act, § 125, as amended by Stats. 1862, p. .')()8, and (1) in the introductory paraRvaph, the word "stiall" was printed "must" : (2) subd. 1 read, "Real property standing upon the records of the county, in the name of tlie defendant, shall be attached, by leaving a copy of the writ with an occupant thereof; or, if there be no occupant, by postinp a copy in a conspicu- ous place thereon, and filing a copy, together with a description of the property attached, with the recorder of the county"; (3) subd. 2 read, "Real property, or any interest therein, belonging to the defendant, and held by any other person, or standing on the records of the county in the name of any other person, shall be attached, by leaving with such person, or his agent, a copy of the writ, and a notice that such real property, (giving a description thereof,) and any interest therein, belonging to the defendant, are attached pursuant to such writ, and filing a copy of such writ and notice with the recorder of the county, and leaving a copy of such writ and notice with an occupant of such property, or, if th(-re be no occupant, by posting a copy thereof in a con- spicuous place thereon"; (4) in subd. 3, the word "must" was printed "shall"; (5) in subd. 4, (a) the word "stocks" was printed "stock." in both instances, and (b) the word "must" was printed "shall"; (6) in subd. 5, (a) the words "Debts" and "must" were printed, re- spectively, "Debits" and "shall," (b) the word "owing," before "such debts," was printed "own- ing," and (c) the word "or," before "the credits and," was printed "on." When enacted in 1872, § 542 read as at present, except that, in subd. 5, (1) the word "owning," before "such debts," •was not changed to "owing," and (2) it did not contain the exception at the end of that sub- division, beginning "except in the case." 2. Amendment by Stats. 1901, p. 139; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1903, p. 167, in subd. 5, (1) changing the word "owing" from "own- ing," and (2) adding the exception at the end, after "pursuance of such writ." Power of legislature. The legislature may provide not only in what cases an at- tachment may issue, but also the classes of property upon which it mav be levied. Dennis v. First Nat. Bank, 127'Cal. 453; 78 Am. St. Rep. 79; 59 Pac. 777. Execution of writ. A writ of attach- ment is not wholly executed by the seizure of the attached property, so far as the offi- cer is concerned, although it is so as to the owner of the property; the writ also, by Its terms, requires the sheriff to keep safely the attached property; and where the duty of safe-keeping is not completely executed at the expiration of the term of office of the sheriff, that duty devolves, by the County Government Act, upon his suc- cessor in office. Wood v. Lowden, 117 Cal. 232; 49 Pac. 132. A writ under which nothing whatever has been done is to be turned over by the sheriff, at the expira- tion of his term of office, to his successor; but if it has been executed, or if the out- going officer has already begun its execu- tion, it is not to be turned over; neither is property held under a levy of the writ §542 ATTACHMENT. 554 in attachment proceedings, which are pledged to the plaintiff, is a trespasser, and liable to the pledgee for the entire value of the goods. Treadwell v. Davis, 34 Cal. 601; 94 Am. Dec. 770. Where, under a writ of attachment against one person, an officer seizes the goods of another, which at the time are in the custody either of the owner or of a person other than the defendant in the writ, he is a trespasser ab initio. Black v. Clasby, 97 Cal. 482; 32 Pac. 564. Protection of officer by writ. When property is in the possession of the de- fendant to the action, the writ of attach- ment alone, if it is issued by competent authority and is regular on its face, pro- tects the sheriff or constable. Laughlin v. Thompson, 76 Cal. 287; 18 Pac. 330; Horn V. Corvarubias, 51 Cal. 524. Where the aflSdavit is defective the writ does not protect the constable. Hisler v. Carr, 34 Cal. 641. A sheriff makes out a prima facie case of justification of the seizure of property by the production of the writ and the affidavit on which it was issued, not- withstanding the affidavit was originally insufficient and was amended subsequently to the seizure, if the property was in the possession of t'.e defendant, and attached as his property. Babe v. Coyne, 53 Cal. 261. The sheriff cannot go behind a writ, regular on its face, and adjudge the ques- tion of its validity on pleadings, affidavit, or proceedings in the action in which it is issued (McComb v. Eeed, 28 Cal. 281; 87 Am. Dec. 115; Harvey v. Foster, 64 Cal. 296; 30 Pac. 849); but he may limit his inquiries as to the validity of the writ; and if it is regular on its face, it will pro- tect him in the performance of his minis- terial duties in serving it. Noreross v. Nunan, 61 Cal. 640. Real property standing in name of de- fendant. In executing a writ of attach- ment, the failure of the officer to post upon the land, where it is not occupied, a copy of the description of the land, in con- nection with a copy of the writ of attach- ment, and of the notice that the land had been attached, is fatal to the validity of the levy, and no lien is created thereon. Main v. Tappener, 3 Cal. 206; Sharp v. Baird, 43 Cal. 577; Watt v. Wright, 66 Cal. 202; 5 Pac. 91. Where the land at- tached is a lot, vacant except for a small building used as an office, posting the notice on such building is sufficient. Davis V. Baker, 72 Cal. 494; 14 Pac. 102. The statute does not require that the papers shall be posted in the most conspicuous place, but in a cons|)icuous place: posting on a house, within five or six feet from the street, where it could be seen, is sufficient. Davis V. Baker, 88 Cal. 106; 25 Pac. 1108. An attempted levy of an attachment on real property of a judgment debtor does not create a lien thereon to which the right of a purchaser at the execution sale can relate, unless a copy of the writ, to- gether with a description of the property attached, and a notice that it is attached, is left with an occupant of the property, or posted upon it. Schwartz v. Cowell, 71 Cal. 306; 12 Pac. 252; Maskell v. Barker, 99 Cal. 644; 34 Pac. 340. The two acts prescribed — the delivery to the occupant of a copy of the writ, or the posting of a copy on the premises, if there is no occu- pant, and the filing of a copy with the re- corder, together with a description of the property attached — must be done, before the lien of attachment is perfected: the omission of either act is fatal to the crea- tion of the lien. Wheaton v. Neville, 19 Cal. 41; Main v. Tappener, 43 Cal. 206. As used in this section, the word "occu- pant" means some one visibly occupj'ing the property, so that when the officer visits the property to complete the levy, he can determine, from what he can see, whether he shall serve the copies by leaving them with an occupant or by posting; under this interpretation of the word, the writ may be served with the promptness essential to the beneficial use of the writ. Davis v. Baker, 72 Cal. 494; 14 Pac. 102. The property stands in the defendant's name, notwithstanding he has executed a convey- ance which has been placed of record, if such conveyance appears upon its face to be void as being a trust deed to convey; in such case the levy of attachment against the defendant is to be made as prescribed in the first subdivision, and not as pre- scribed in the second subdivision, of this section. Johnson v. Miner, 144 Cal. 785; 78 Pac. 240. The deposit in the re- corder's office of a copy of the writ, with a description of the property attached, is sufficient to operate as notice of the lien to third parties. Eitter v. Seannell, 11 Cal. 239; 70 Am. Dec. 775. After the return of the writ to the clerk's office, the sheriff has no authority to take any proceedings, previously omitted, for the completion of the attachment: the writ is authority to him only for acts performed while it re- mains in his possession. Wheaton v. Neville, 19 Cal. 41. The decision of the appel- late court as to the insufficiency of the testimony to prove the service of notice of attachment on the occupant of land be- comes the law of the case upon a retrial, and production of same testimonv. Brusie V. Gates, 96 Cal. 265; 31 Pac. 111. Real property, or interest therein, held by others. Any interest in land, legal or equitable, is subject to attachment or exe- cution. Fish V. Fowlie, 58 Cal. 373; God- frey V. Monroe, 101 Cal. 224; 35 Pac. 761; and see Logan v. Hale, 42 Cal. 645. A leasehold interest, unless the lease con- tains a provision against the assignment thereof, and specifically provides against involuntary assignment by operation of law, is attachable (Farnum v. Hefner, 79 Cal. 575; 12 Am. St. Rep. 174; 21 Pac. 555 REAL AND PERSONAL PROPERTY ATTACHED HOW. §542 955); as is also the interest of a defendant in land held in trust (De CVlis v. Porter, 59 Cal. 4G4); and the e(iuitable interest of the grantor of a trust deed to a recon- veyance of the land upon the payment of the debt, or to the surplus proceeds after sale (Brown v. Campbell, 100 Cal. G35; 38 Am. St. Eep. 314; 35 Pac. 433); and the right of redemption in real estate, after sale on foreclosure. Brown v. Campbell, 100 Cal. 635; 38 Am. St. Rep. 314; 35 Pac. 433; and see Knight v. Fair, 9 Cal. 117; McMillan v. Richards, 9 Cal. 365; 70 Am. Dec. 655; Halsey v. Martin, 22 Cal. 645; Robinson v. Thornton, 102 Cal. 675; 34 Pac. 120. The interest of a tenant in com- mon is attached by taking possession of the entire property of the tenants in com- mon for the purpose of subjecting to the sale tlie interest of the attachment de- fendant. Veaeli v. Adams, 51 Cal. 609; and see Waldman v. Broder, 10 Cal. 379; Bernal v. Hovious, 17 Cal. 541; 79 Am. Dec. 147. The distributive share of an heir in real estate is liable to attachment, although, prior to distribution, such heir had conveyed his interest therein, in good faith and for value, where .the assignee did not assert his right before the probate court and have the heir's share distributed directly to himself. Freeman v. Rahm, 58 Cal. 111. Lands conveyed in fraud of creditors, without consideration, to one not a bona fide purchaser, may be levied upon and sold as if no conveyance had been made. Bull v. Ford, 66 Cal. 176; 4 Pac. 1175; Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; 13 Pac. 73. The interest of a miner in his mining claim is property, and may be taken and sold under execution. McKeon v. Bisbee, 9 Cal. 137; 70 Am. Dec. 642. A homestead selected by a wife out of the separate property of her husband, without his assent, loses its character as a homestead upon his death, and is sub- ject to attachment. Weinreich v. Hensley, 121 Cal. 647; 54 Pac. 254. Conveyance before completion of levy. Where, after the sheriff has entered upon the execution of a writ, and before he has completed the levy, another creditor pur- chases the property from the attachment debtor, such creditor takes the property free from any lien of the attachment; and the fact that such purchasing creditor and the debtor knew at the time of the sale that the attachment had issued does not render the purchase a fraud upon the at- taching creditor; nor is a conveyance giv- ing a preference to one creditor frauilulent, simply because the debtor is insolvent, and the purchasing creditor is aware at the time of the conveyance that it will have the effect of defeating the collection of other debts. Wheaton v. Neville, 19 Cal. 41; Main v. Tappener, 43 Cal. 206; Sharp V. Baird, 43 Cal. 577. Effect of the levy. The lien of the at- tachment creditor takes effect immediately upon the levy of the attachment, and the deposit of a copy of the writ, together with a description of the projierty attached, with the county recorder. Ritter v. Scan- nell, 11 Cal. 239; 7U Am. Dec. 775. The writ is effectual to change the title of the property, only from the time of the levy. Taffts V. Manlove, 14 Cal. 48; 73 Am. Dec. 610. If the writ is not legally served, there is no lien. Main v. Tapfiener, 43 (Jal. 206; Sharp v. Baird, 43 Cal. 577. The lien of the attaching creditor does not depend upon the return of the officer, but upon the levy made by him, and where he makes a proper levy, but fails to make a ](roi>er or any return, the attaching creditor can- not be deprived of his rights, but may show that a valid levy was made; and the same is true of a purchaser under an exe- cution, whose title depends upon the va- lidity of the attachment levy; but where such proof is allowed, the evidence must be clear and satisfactory. Brusie v. Gates, 80 Cal. 462; 22 Pac. 284. Personal property capable of manual de- livery. Levy upon personal property is the act of taking possession of it, or seiz- ing or attaching it, bv the sheriff or other officer. Taffts v. Manlove, 14 Cal. 48; 73 Am. Dec. 610. A levy upon property al- ready in the possession of the officer by virtue of a former attachment, does not require seizure under a second attachment: all that is required to be done is to make a return on the back of the attachment. O'Connor v. Blake, 29 Cal. 312. Personal property capable of manual delivery must be taken into the custody of the sheriff, and sold after judgment, as required by law. Herron v. Hughes, 25 Cal. 556; Sheehy v. Graves, 58 Cal. 449. Goods stored in a warehouse are sufficiently levied upon by the officer taking them into actual posses- sion and placing them in charge of a keeper. Sinsheimer v. Whitelv, 111 Cal. .378; 52 Am. St. Rep. 192; 43" Pac. 1109. Where a sheriff levies on portable ma- chinery and fittings by delivering a copy of the writ to the defendant, making a memorandum of the property attached, and takes steps to have persons meddling therewith notified that it is attached, pending the sending of a keeper, there is a sufficient taking into custody as against the defendant and persons purchasing from him with notice; but it might not be suffi- cient as against a purchaser in good faith, or another attaching creditor. Rogers v. Gilmore, 51 Cal. 309. The mere watching and guarding of a storehouse does not amount to a levy upon the property within: the levy dates from the entry of the offi- cer into the house, and his levy on the property there; and, if, prior to gaining admission, other parties succeed in ac- quiring a valid lien upon the property, the officer loses his right to levy. Taffts v. Manlove, 14 Cal. 48; 73 Am. Dec. 610. The property of tenants i© common must §542 ATTACHMENT. 556 all be taken into possession, in a suit against one co-tenant, for the purpose of subjecting the undivided interest of such co-tenant to the sale on execution. Veach V. Adams, 51 Cal. 609. Property subject to a lien cannot be seized by tlie sheriff, except upon the payment of the amount of the lieu. Johnson v. Perry, 53 Cal. 351. A promissory note, the property of the de- fendant in an attachment and execution, is liable to seizure and sale thereunder. Davis V. Mitchell, 34 Cal. 81; Donohoe v. Gamble, 38 Cal. 340; 99 Am. Dec. 399; Kobinson v. Tevis, 38 Cal. 611; Hoxie v. Brvant, 131 Cal. 85; 63 Pac. 153; and see Crandall v. Blen, 13 Cal. 15. The prop- erty of a street railroad company, such as cars, tracks, electrical supplies, is liable to attachment (Risdon Iron etc. Works v. Citizens' Traction Co., 122 Cal. 94; 68 Am. St. Rep. 25; 54 Pac. 529); as is also the property of a solvent partnership, in the hands of a receiver appointed in a suit for dissolution. Adams v. Woods, 9 Cal. 24. Property in the hands of a foreign re- ceiver, brought by him into this state, is attachable while in his possession, upon the suit of a creditor who is a citizen of this state. Humphreys v. Hopkins, 81 Cal. 555; 15 Am. St. Rep. 76; 6 L. R. A. 792; 22 Pac. 892. Where one of several part- ners sells his undivided interest in the partnership property, the purchase-money stands in the place of the property, and is liable for the partnership debts, the same as the property for which it was paid. Burpee v. Bunn, 22 Cal. 194. The attaching creditor can acquire no greater right in attached property than the de- fendant had at the time of attachment. Howell V. Foster, 65 Cal. 169; 3 Pac. 647; Smith V. Cunningham. 67 Cal. 262; 7 Pac. 679; Ward v. Waterman, 85 Cal. 488; 24 Pac. 930. Shares of stocks. The w^ord "cashier," as used in the fourth subdivision of this section, refers to an executive officer of a corporation, as the cashier of a bank, and not to a simple employee who is not a man- aging agent, as a clerk employed in a store belonging to a mining corporation, al- though he may have exclusive duties in relation to the custody of moneys, keeping accounts, and paying employees; and a corporation is not bound by a writ deliv- ered to any of its agents or employees other than those named in this section. Blanc V. Paymaster Mining Co., 95 Cal. 524; 29 Am. St. Rep. 149; 30 Pac. 765. Where shares of stock have been regularly transferred on the books of the corporation as security for a loan, the mortgagee is the only proper garnishee. Edwards v. Beugnot', 7 Cal. 162. Attachment of unregistered stock. See note ante, S 541. Debts, credits, and personal property, not capable of manual delivery. The mode of attaching debts and credits, and other personal property not capable of manual delivery, as provided by the code, is ex- clusive. McBride v. Fallon, 65 Cal. 301; 4 Pac. 17; Latham v. Blake, 77 Cal. 646; 18 Pac. 150; 20 Pac. 417. A notice of gar- nishment of "all moneys, credits, and ef- fects of defendant," is not effective as an attachment of a "debt" due from the gar- nishee to the defendant. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. Promissory notes, the property of the defendant in an attachment and execution, are liable to seizure and sale thereunder. Davis V. Mitchell, 34 Cal. 81; Robinson v. Tevis, 38 Cal. 611; Gow v. Marshall, 90 Cal. 565; 27 Pac. 422; Deering v. Richard- son-Kimball Co., 109 Cal. 73; 41 Pac. 801. Property acquired by an insolvent after the date of the filing of his petition in in- solvency, is subject to attachment upon his subsequent adjudication in insolvency. Day V. Superior Court, 61 Cal. 489. Ser- vice of process of attachment upon the teller of a banking corporation, whose only duty is to receive and pay out moneys, does not bind the corporation. Kennedy V. Hibernia Sav. & L. Soc, 38 Cal. 151. The interest of a pledgor may be attached, but the pledgee cannot be disturbed in his possession, unless by an order of the court, made after examination, on such terms as may be just, having reference to any liens thereon or claims against the same. Tread- well V. Davis, 34 Cal. 691; 94 Am. Dec. 770; and see Deering v. Richardson-Kim- ball Co., 109 Cal. 73; 41 Pac. 801; Lilien- thal V. Ballou, 125 Cal. 183; 57 Pac. 897; Salinas City Bank v. Graves, 79 Cal. 192; 21 Pac. 732. Mortgaged personal property is attachable at the suit of a creditor of the mortgagor; but, before the property is taken, the officer must pay or tender to the mortgagee the amount of the mort- gage. Wood V. Franks, 56 Cal. 217; Ber- son V. Nunan, 63 Cal. 550; Wood v. Franks, 67 Cal. 32; 7 Pac. 50; Meherin v. Oaks, 67 Cal. 57; 7 Pac. 47; Irwin v. McDowell, 91 Cal. 119; 27 Pac. 601. The interest of a mortgagor is liable to attachment, whether the instrument evidencing the security be ordinary mortgage or deed of trust and defeasance. Halsey v. Martin, 22 Cal. 645; Godfrey v. Monroe, 101 Cal. 224; 35 Pac. 761. The attachment of the interest of a mortgagor after foreclosure of the mort- gage, and before the execution of the deed, reaches only the right of redemption of the mortgagor, and the lien of the attach- ment is extinguished by the deed. Robin- son V. Thornton, 102 Cal. 675; 34 Pac. 120. The interest of a partner in the partner- ship property is attachable. Robinson v. Tevis, 38 Cal. 611; Isaacs v. .Tones, 121 Cal. 257; 53 Pac. 793. Partnership effects, in the hands of a receiver appointed in a suit for dissolution, may be attached in a suit of the creditor of the partnership at any time before the decree of dissolution and order for pro rata distribution are 557 DEBTS, CREDITS, ETC — FEES AND EXPENSES OF OFFICER. §542 made, and such creditor may thereby se- cure a preference or lien upon the [jartner- ship assets. Adams v. Woods, 9 Cal. 24; Adams V. Woods, 8 Cal. 152; 68 Am. Dec. 313; and see Adams v. Haskell, 6 Cal. 113; 6.3 Am. Dec. 491. Where a receiver of a jiartnership property was appointed prior to a levy of attachment on the interest of an individual partner, the sheriff is not entitled to take possession of the partner- ship property from the receiver; but if the attaching creditor obtains judgment against such partner, and sells his interest in the partnership, the purchaser is en- titled to receive whatever may be found to belong to such partner. Isaacs v. Jones, 121 Cal. 257; 53 Pac. 793. Where a part- ner conveyed partnership property to a trustee, for his wife, in fraud of the credi- tors of the partnership, the proceeds of the sale of such property are liable to gar- nishment. Burpee v. Bunn, 22 Cal. 194. Crops grown by the adverse possessor of lands cannot be attached as the property of the legal owner of the land. Smith v. Cunningham, 67 Cal. 262; 7 Pac. 679. A crop abandoned by a lessee, and harvested by the lessor at an expense exceeding the value thereof, is not attachable by the creditors of the lessee. Charles v. Davis, 59 Cal. 479. A crop raised by a tenant of land, who holds under a lease contain- ing a covenant that the entire crop shall be the property of the landlord until all advances made by him to the tenant shall be paid, is not subject to attachment by a creditor of the tenant while such ad- vances remain unpaid. Howell v. Foster, 65 Cal. 169; 3 Pac. 647. A growing crop is personal property not capable of man- ual delivery, and is liable to attachment; and service upon the person in possession, by leaving with him a copy of the writ and statutory notice, is sufficient until the crop matures, when the officer may take it into his custody. Raventas v. Green, 57 Cal. 254; Cardenas v. Miller, 108 Cal. 250; 49 Am. St. Rep. 84; 39 Pac. 783; Rudolph y. Saunders, 111 Cal. 233; 43 Pac. 619; and see Davis v. McFarlane, 37 Cal. 634; 99 Am. Dec. 340. A cropper's interest in a growing crop, under a contract to work the land on shares, is liable to attachment; and to effect this, possession of the entire quantity of the crop may be taken, and the purchaser at the execution sale be- comes a tenant in common with the owner of the other undivided interest. Bernal V. Hovious, 17 Cal. 541; 79 Am. Dee. 147. Where, by the terms of a contract, the en- tire crop was to belong to the owner of the land until division, and to be security for any indebtedness to such owner, the interest of the cropper becomes liable to attachment, when, upon division, he de- livers to such owner his due proportion, and the remainder is in possession of the cropper, although still on the land of such owner, who still claims a lien foi indebt- edness, but who cannot maintain a secret lien upon the share of the cropper, ('rocker V. Cunningham, 122 Cal. 547; 55 Pac. 404. Where a growing crop was, by the terms of a lease, to remain the property of the lessor until the harvesting and division thereof, and the lessee had no right to dis- pose of or to encumber the same or any portion thereof, but was to receive a cer- tain portion upon delivery of the whole to the lessor, the lessee has an interest in the grain subject to attachment, notwithstand- ing the specific jirovision in the lease that title to crop should remain in tlic lessor until the division thereof. Farnum v. Hef- ner, 79 Cal. 575; 12 Am. St. Rep. 174; 21 Pac. 955; Stockton Sav. & L. Soc. v. Pur- vis, 112 Cal. 226; 53 Am. St. Rep. 210; 44 Pac. 561. An attachment upon a growing crop in the possession of the defendant is sufficiently levied by serving upon him copies of the writ and statutory notice; and there is no abandonment, where the sheriff, when the crop matures, harvests and takes it into his custody. Raventas V. Green, 57 Cal. 254; Cardenas v. Miller, 108 Cal. 250; 49 Am. St. Rep. 84; 39 Pac. 783. The estate of a prisoner may be at- tached, where he is imprisoned for a term less than his natural life. Estate of Nerac, 35 Cal. 392; 95 Am. Dec. 111. The prop- erty of a prisoner under sentence of life imprisonment, taken and held, upon his re- quest, by a chief of police as bailee, and not in his official capacity, is attachable; and the court has jurisdiction to enforce execution against such property, although the judgment in the civil action was net entered against the prisoner until after his civil death. Coffee v. Haynes, 124 Cal. 561; 71 Am. St. Rep. 99; 57 Pac. 482. Costs, expenses, arid fees of officer. Where the levy is properly made, the offi- cer is entitled to his legal fees, and the attaching creditor must pay them, and notice from the sheriff that the levy has been made is not required (Alexander v. Denaveaux, 59 Cal. 476); and where an attachment is levied upon several pieces of real estate, the sheriff is entitled to fees for each levy. Young v. Miller, 63 Cal. 302. The sheriff is the agent of the plaintiff in levying an attachment, and the plaintiff cannot relieve himself from lia- bility for expenses incurred in such agency by the dismissal of the action, or the mere direction to release the property; neither can the parties to the action, by an agree- ment between themselves for its dismissal, deprive the sheriff of his fees, nor com- pel him to look to the solvency or caprice of the plaintiff therefor: for the purpose of protecting the sheriff against such con- tingencies, it is provided by statute that he may retain the property levied on under the attachment until his fees and expenses are paid. Perrin v. McMann, 97 Cal. 52; 31 Pac. 837. Where the property attached is portable, though some of it may be §542 ATTACHMENT. 558 classed as fixtures, the sheriff is entitled to necessary costs for safely keeping the same. Nisbet v. Clio Mining Co., 2 Cal. App. 436; 83 P^c. 1077. Keeper's fees, and expenses of keeping and preserving the property held under attachment, can- not be collected b}' the sheriff, unless the court from which the writ issues certifies that the charges are just and reasonable. Geil V. Stevens, 48 Cal. 590; Lane v. Mc- Elhany, 49 Cal. 421; Bower v. Rankin, 61 Cal. lOS; Shumway v. Leakey, 73 Cal. 260; 14 Pac. S41. Expenditures made by the sheriff for fire-insurance premiums on property attached are not proper items of cost. Galindo v. Eoach, 130 Cal. 3S9; 62 Pac. 597. A deputy sheriff is not au- thorized to bind the sheriff by contract for the payment of the keeper's fees. Krum V. King, 12 Cal. 412. Situs of property for purpose of garnishnieiit. See note 69 Am. St. Kep. 113. Levy of and what essential to levy attachment. See note 21 Am. Dec. 677. Levy of attachment as subject to collateral at- tack. See note Ann. Cas. 1913C, 146. CODE COMMISSIONEKS' NOTE. 1. Duty of sheriff, generally. The presumptions are thai the officer faithfully performs his duty. Turner v. Bil- lagram, 2 Cal. 520; Ritter v. Scannell, 11 Cal. 238; 70 Am. Dec. 775. An officer, after entering upon the execution of an attachment, must com- plete its execution with diligence. Wheaton v. Neville, 19 Cal. 41. An officer who levies a writ of attachment upon personal property, in obedi- ence to the commands of the writ, has no right to let the property go out of his hands, except iu the course of law, and if he does, and the debt is lost, he is responsible to the plaintiff for the amount of the debt. Nor will the oral instruction of the plaintiff in an attachment or execution, respect- ing property seized by the sheriff under either writ, discharge such sheriff from liability. The statute is express that such instruction must be in writing. Sandford v. Boring, 12 Cal. 539. Where one writ was placed in the sheriff's hands on Sunday, and another against the same defend- ant was placed in the htnds of a deputy at a quarter past twelve on Monday morning, the sher- iff not knowing the fact, and the first levy was made under the writ at one o'clock Monday morn- ing, it was held that the sheriff was not guilty of negligence in executing the first, no special circumstances being shown. Whitney v. Butter- field, 13 Cal. 335; 73 Am. Dec. 584. Where an officer, by virtue of a second attachment, levies on property in his possession by virtue of a former attachment, it is only necessary for him to return that he has attached the interest of the defend- ant in the property then in his possession. O'Con- nor V. Blake, 29 Cal. 312. If the sheriff take property which does not belong to the defendant, the taking is tortious, whether the property was in the possessicn of defendant or not. Wellman V. English, 38 Cal. 583. Where the complaint contains no allegation that the levy was excessive, in an action ajiainst a sheriff for the recovery of personal property alleged to have been improp- erly attached, the plaintiff cannot avail himself of the fact that the evidence showed the levy was excessive. Sexey v. Adkison, 40 Cal. 408. 2. Levy upon real property. The presumptions are in favor of the regularity of the acts of the officer, and a return which simply states that the property was attached is sufficient, prima facie, to shoA- a due and proper execution of the writ. Our stntute prescribes the manner in which real estate may be attached, but contains no provision requiring that all the acts necessary to a levy should be set out in the return. Nor is it neces- sary, when the levy is made by posting a copy of the wri; on the premisei). that the return of the sheriff should show that the premises were at the time unoccupied. Ritter v. Scannell, 11 Cal. 248; 70 Am. Dec. 775. An attachment of real prop- erty is not perfected until both the acts prescribed by statute, to wit, delivery to the occupant of a copy of the writ, or posting a copy upon the premises, if there be no occupant, and the filing of a copy with the recorder, together with a de- scription of the property attached, are performed. The omission of either act is fatal to the creation of a lien. Thus, where a writ of attachment was issued on the 26th of August, and a copy de- livered to the occupant of the premises, or posted upon them, on the 29th of that month, and on the same day the writ was returned, and filed in the clerk's office, but no copy of the writ, with a description of the property, was filed with the recorder, until the 9th of September following, it was held, that, after the return of the writ to the clerk's office on the 29th of August, the sher- iff had no authority to take any proceedings for the completion of the attachment, previously omitted; that the writ was authority to him, only for acts performed while it remained in his pos- session, and hence, that another creditor of the debtor, purchasing the property from the latter on the 6th of September, took it free from any lien of the attachment. Wheaton v. Neville, 19 Cal. 41. 3. Lien of attachment attaches on personal property, only from the time of levy. Taffts v. Manlove, 14 Cal. 47; 73 Am. Dec. 610. On real estate, immediately upon the levy of the attach- ment and the deposit of a copy of the writ, to- gether with a description of the land attached, with the county recorder. Ritter v. Scannell, 11 Cal. 238; 70 Am. Dec. 775. If, after the levy of an attachment and before judgment, the de- fendant dies, his death destroys the lien of the attachment, and the property passes into the hands of the administrator, to be administered, or in due course of administration. Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49., Where the first at- tachment against an insolvent is set aside as fraudulent, in a suit brought by a subsequent creditor, to which various other attaching credi- tors, prior and subsequent, are parties, the plain- tiff in the suit cannot claim priority over the attachments orecedins: his, on the ground that by his superior diligence the fraud was discovered. The prior attachments became liens in the nature of a legal estate vested in the sheriff for the bene- fit of the creditors. Patrick v. Montader, 13 Cal. 444. The lien of firm creditors is preferred Jo the lien of an individual creditor of the remain- ing partner attaching first. Conroy v. Woods, 13 Cal. 631; 73 Am. Dec. 605. A lien by attachment enables a creditor to file a creditor's bill, without judgment and execution. Conroy v. Woods, 13 Cal. 626; 73 Am. Dec. 605. Plaintiff, January 10, 1858, in a suit entitled C. and M. and others, composing the Wisconsin Quartz Mining Co. (a corporation), attached a quartz mill and ledge belonging to the corporation. June 28, 1858, the complaint was amended so as to make the corporation, as such, the party defendant, and judgment was rendered against the company Au- gust 14, 1858, the property sold, the plaintiff becoming the purchaser. October 7, 1857, W. re- ceived from the corporation a chattel mortgage on this property, had decree of foreclosure August 9, 1858, followed by a sale in October following, W. becoming the purchaser. Defendants here are in possession under sheriff's sale on the decree. Plaintiff claims title under his judgment and sale. It was held, that he could not recover; that he acquired no lien by the attachment, because the property attached belonged to the corporation, which was not a party to the suit until after the levy and return of the writ; that plaintiff's rights attach only from the date of his judgment, August 14, 1858, and his lien being subsequent to the lien of W.'s judgment, August 9, 1858, under which defendants claim, the latter have the better right. Collins v. Montgomery, 16 Cal. 398. T. commenced suit against J. ; a writ of attachment was levied upon certain personal property by the plaintiff H., as sheriff. M. .J., wife of J., claimed the property as a sole trader, and brought her action of replevin for the property, and obtained possession of the same, by the delivery of an un- dertaking as required by law. The undertaking 559 LIEN — DUTY OP SHERIFF GARNISHEE LIABLE WHEN. §§ 542a-544 was executed by defendants R. «nd S. The re- fluently. Webster y. Ilaworth, 8 Cal. 21; 68 Am. picvin suit was decided Kcljruary 5, 1855, in Dec. 2M7. f;ivor of H. T. obtained judRniont in the attach- 4. Garnisbment. See note to § 544. Where a ment suit apainst J., November 30, 185-1. On debtor trauhfers personal property to a creditor, the 18lh of February, 1855, executions in favor to be sold by him and the proceeds applied to the of other creditors of J. cominf: into the hands of payment of his debts and debts of certain other II., as sheriff, he levied them on the same prop- creditors, with their consent, the transferee and erly, and subsequently sold the property and paid those he represents acfiuire a lien upon the prop- the proceeds into court. II. then brought this erty and its proceeds sujierior to any which other suit against the sureties in the replevin bond. It creditors could acquire \>y the subsequent levy of was held that the lien of T.'s attachment con- an altaehment or other process thereon. Uandley tinued after the replevy of the goods by M. J. v. Pfisler, 39 Cal. 283; 2 Am. Rep. 449. The lien Hunt V. Robinson, 11 Cal. 2G'J. The lien of an of an attachment upon real property is mcrced attachment upon funds in the hands of a receiver in that of the judRraenf, and has no effect, except follows the property in the hands of his succes- to confer a priority in the lien of the judgment, sors. Adams v. Woods, 9 Cal. 29. The return on and does not revive upon the expiration of the an attachment cannot be amended so as to post- two years' lien of the judgment. Bagley t. Ward, pone the rights of creditors attaching subse- 37 Cal. 121 ; 99 Am. Dec. 256. § 542a. Lien of attachment. The attachment whether heretofore levied or hereafter to be levied shall be a lien upon all real property attached for a period of three years after the date of levy unless sooner released or diseharjied as provided in this chapter, by dismissal of the action or by entry and docketing of judgment in the action. At the expiration of three years the lien shall cease and any proceeding or proceedings against the property under the attachment shall be barred ; provided, that upon motion of a party to the action, made not less than five nor more than sixty days before the expiration of said period of three years, the court in which the action is pending may extend the time of said lien for a period not exceed- ing two years from the date on which the original lien would expire, and the lien shall be extended for the period specified in the order upon the filing, before the expiration of the existing lien, of a certified copy of the order with the recorder of the county in which the real property attached is situated. The lien may be extended from time to time in the manner herein prescribed. Legislation § 542a. 1. Added by Stats. 1909, Attachment lien not perfected by judgment p. 749. during husband's lifetime as prior to widow's 2. Amended by Stats. 1915, p. 201, (1) in share in estate. See note Ann. Cas. 1913A, ;)4;t. first sentence, inserting "whtther heretofore Divestiture of attachment lien by subsequent levied or hereafter to be levied"; (2) in the occupation of land for homestead purposes. See proviso, inserting "before the expiration of the note Ann. Cas. 191 315, 1149. existing lien." Attachment not prosecuted to judgment as a _.. , ,. -..it ... conclusive election of remedies. See note 34 Origin and general nature of attachment lien. t j^j .^ (N s ) 309 See note 39 Am. Dec. 606. . . - . \. . . j § 543. Attorney to give written instructions to sheriff what to attach. Upon receiving information in writing from the plaintiflf or his attorney, that any person 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 attached in pursuance of such writ. Legislation 8 543. Enacted March 11, 1872; same, or the secretary, cashier, or other manacing based on Practice Act, § 126. agent thereof. In case of a banking corporation, ^^■r,^ «^,^„„^-r«»T^.„c. -.-r^™^ .., . ,, service ol process on the teller is not sufficient. CODE COMMISSIONERS' NOTE. To hold a Kennedy v. Hibernia Sav. & L. Soc , 38 Cal 151. corporation as garnishee, the writ and notice must An ex-sheriff is served as a private individual, be served on the president, or other head of the Graham v. Endicott, 7 Cal. 144. § 544. Garnishment, when garnishee liable to plaintiff. All persons hav- ing 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 service upon them of a copy of the writ and notice, as pro- vided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied. §544 ATTACHMENT. 560 Similar provision as to execution. Post, § 716. Legislation § 544. Enacted March 11, 1872; re-enactment of Practice Act, § 127. Garnishment. Although partially regu- lated by statute, yet garnishment is none the less a common-law proceeding. Cahoon V. Levy, 5 Cal. 294. Garnishment is the service of a writ of attachment upon per- sonal property in the possession of persons other than the defendant in the writ, to secure the credits, debts, etc., in the hands of such third persons; and by the service in the manner provided by statute, whether termed "garnishment" or "service of at- tachment," while the possession is not necessarily disturbed, yet a lien is obtained on the defendant's title to the property in the hands of the garnishee. Kimball v. Eichardson-Kimball Co., Ill Cal. 3S6; 43 Pac. 1111. The contract liability is not converted, by the garnishment, into a statutory liability: the sole effect of the garnishment is to work a contingent trans- fer of the alleged indebtedness from the creditor to the garnisher, without any change in the nature of the liability. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Eep. 253; 83 Pac. 36. In an action against a garnishee by his creditor, the only effect of the garnishment is to suspend the pro- ceedings: it is not a bar to the action. McFadden v. O'Donnell, 18 Cal. 160; Pier- son V. McCahill, 21 Cal. 122; McKeon v. McDermott, 22 Cal. 667; 83 Am. Dec. 86. A garnishment is no defense to an action of the defendant against a garnishee while the attachment still remains pending and undetermined. Glugermovich v. Zicovich, 113 Cal. 64; 45 Pac. 174. An admission of the garnishee, consisting of a pencil- entry, after service of the notice, made in his ledger, by a book-keeper, on the margin of his account with an attachment debtor, showing that it was "attached" on the day of service, and a statement of the garnishee to such debtor, that the debt was attached, as an excuse for refusing further payments, though evidence of such attach- ment, is not conclusive, and may have been nothing more than the expression of an erroneous opinion as to the effect of the notice of attachment served by the sheriff, and the garnishee is not thereby estopped from showing that the notice of the gar- nishment attached merely "all moneys, credits, and effects," and did not include "debts." Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. The lien of a plaintiff, obtained by his attach- ment upon notes, fastens itself not only upon the notes, but also upon the proceeds thereof when collected. Robinson v. Tevis, 38 Cal. 611. Tlie garnishee. An administrator may be garnished, after decree of distribution (Estate of Nerac, 35 Cal. 392; 95 Am. Dec. Ill; Dunsmoor v. Furstenfeldt, 88 Cal. 522; 22 Am. St. Rep. 331; 12 L. R. A. 508; 26 Pac. 518); and a bailee is liable to garnishment. Chandler v. Booth, 11 Cal. 342; Hardy v. Hunt, 11 Cal. 343; 70 Am, Dec. 787. A school district is not a "person," within the meaning of the fifth subdivision of § 542, ante, and is not liable to be served as a garnishee. Skellv v. Westminster School Dist., 103 Cal. 652'; 37 Pac. 643; Witter v. Mission School Dist., 121 Cal. 350; 66 Am. St. Rep. 33; 53 Pac. 905. An assignee for the benefit of credi- tors is not liable to garnishment, unless the assignment is subject to impeachment. Heeht v. Green, 61 Cal. 269. The gar- nishee has the right, which may be volun- tarily exercised, to protect himself from all further liability, by delivering the prop- erty to the sheriff (Roberts v. Landecker, 9 Cal. 262; Robinson v. Tevis, 38 Cal. 611); and he may pay the attached money into court, where there are conflicting liens. Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. 522; Maier v. Freeman, 112 Cal. 8; 53 Am. St. Rep. 151; 44 Pac. 357. He is not required, and he has no right, to appear in the action: the only answer he makes is to the sheriff, at the time of the service of the writ, and that relates only to the property actually attached, which he has in his possession or under his control. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. Where the gar- nishee is sued by the defendant in an attachment suit, he may, by atfidavit or other appropriate means, apply for a stay of the proceedings until the action of the attaching creditor can be disposed of, or the court may allow the cause to proceed to judgment, and stay execution upon enough to provide for satisfaction of the demand for which the debtor is garnished. Glugermovich v. Zicovich, 113 Cal. 64; 45 Pac. 174; McKeon v. McDermott, 22 Cal. 667; S3 Am. Dec. 86. The garnishee should be permitted to amend his answer, when- ever he has committed a mistake or fallen into an error which could not reasonably have been avoided. Smith v. Brown, 5 Cal. 118. A garnishee who received the property of the defendant from a former pledgee, guaranteeing payment of the de- fendant's debt to such pledgee, and who paid the same before the levy of attach- ment, is entitled to a lien for the debt of the defendant to himself, and also for the amount paid upon the defendant's indebt- edness to the former pledgee. Treadwell v. Davis, 34 Cal. 601; 94 Am. Dec. 770. Where the garnishee denied both the at- tachment and the debt, and pleaded the bar of the statute of limitations, he cannot be deprived of his right to plead the statute, as against the plaintiff, on the ground that the attachment debtor, whose interest was adverse, had conceded the validity of the attachment. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. Debts and credits. A "debt" is money owing by the garnishee to the defendant, 561 DEBTS, CREDITS, EQUITABLE EIGHTS, ETC. — BANK DEPOSITS. §544 which may be paid over to the sheriflF; while "credits" are something belonging to the defendant, but in the possession and under the control of the garnishee, such as promissory notes or other evidences of indebtedness of third parties, which may be delivered up or transferred to the sher- iff. Gow V. Marshall, 90 Cal. 565; 27 Pac. 422; and see Davis v. Mitchell, 34 Cal. 81; Kobinson v. Tevis, 38 Cal. 611; Deering v. Kichardson-Kimball Co., 109 Cal. 73; 41 Pac. 801. The word "debt," as used in the law of garnishment, includes only legal debts, causes of action upon which the defendant in the attachment, under the common-law practice, can maintain an action of debt or indebitatus assumpsit, and not mere equity claims. Ilassio v. G. I. W. U. Congregation, 35 Cal. 378; Eedondo Beach Co. v. Brewer, 101 Cal. 322; 35 Pac. 896. Any kind of obligation of one to pay money to another is a debt: a debt signifies what one owes, and there is always some obligation that it shall be paid; but the manner of payment, or the means of coercing payment, does not enter into the definition. Dunsmoor v. Furstenfeldt, 88 Cal. 522; 22 Am. St. Rep. 331; 12 L. R. A. 508; 26 Pac. 518. A notice of garnishment, under a writ of at- tachment describing only "moneys, credits, and effects" as being attached, does not include any "indebtedness" due from the garnishee to the principal defendant, nor create any liability therefor to the attach- ing creditor. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. A garnishment of "certain credits belong- ing to the defendant," which a corporation has in its possession or under its control, is not an attachment of a "debt" due from the corporation to the defendant, and the attaching creditor acquires no lien upon or right to such debt by the service of the writ. Gow V. Marshall, 90 Cal. 565; 27 Pac. 422. Debts secured by mortgage may be attached by garnishment, but in no other way. McGurren v. Garrity, 68 Cal. 566; 9 Pac. 839. All debts and credits of a defendant, in possession of another person, are attachable by garnishment (Deering v. Richardson-Kimball Co., 109 Cal. 73; 41 Pac. 801; Gow v. Marshall, 90 Cal. 565; 27 Pac. 422; Davis v. Mitchell, 34 Cal. 81; Robinson V. Tevis, 38 Cal. 611); as is also the indebt- edness of the vendee for the purchase price of real estate (Ross v. Heintzen, 36 Cal. 313); and the debt secured by a mortgage (McGurren v. Garrity, 68 Cal. 566; 9 Pac. 839); and the judgment debt; but the judg- ment itself is not. McBride v. Fallon, 65 Cal. 301; 4 Pac. 17; Dore v. Doughertv, 72 Cal. 232; 1 Am. St. Rep. 48; 13 Pac. '621; Latham v, Blake, 77 Cal. 646; 18 Pac. 150; 20 Pac. 417; Hoxie v. Bryant, 131 Cal. 85; 63 Pac. 153; and see Adams v. Ilackett, 7 Cal. 187; Crandall v. Blen, 13 Cal. 15. Equitable rights and contingent claims. The equitable right of a subcontractor, 1 Fair. — 36 under the assignment of an interest in a building contract, whereby the contractor authorized the owner to pay to the sub- contractor a certain portion of the con- tract price, to be paid in installments as the work progressed, upon the certificate of the architect, as provided in the con- tract between the owner and the con- tractor, is not such a legal demand as will support a garnishment of the owner in an action against the contractor; and the certificate of the architect creates no debt in favor of the subcontractor until in- dorsed by the contractor and accei)te(l by the owner. Ilassie v. G. I. W. U. Con- gregation, 35 Cal. 378. The assignee of a vendee under an executory contract for the conveyance of land has no legal de- mand against the vendor for the amount paid by the vendee on the purchase price, or for moneys expended by himself in improvements, where the vendor elcts to declare the contract forfeited for failure of the assignee of the vendee to pay the purchase price at the stipulated time: whatever right the assignee has is merely equitable, and not subject to garnishment. Redondo Beach Co. t. Brewer, 101 Cal. 322; 35 Pac. 896. An execution pur- chaser, who, pending appeal, bid in the property for the entire amount of his judgment against the defendant, does not, merely by reason of the modification of the judgment on appeal, reducing the amount thereof, become the debtor of the defend- ant for the amount of the purchase price bid by him in excess of the judgment as modified: the sale was valid at the time it was made, but was liable to be set aside upon a reversal or modification of the judgment on appeal, or by the court be- low, upon the return of the case, upon motion of the defendant, or by action; and this right to have the sale set aside is at the election of the defendant, and not of his creditors; and unless he elects to treat the sale as valid, there can be no pretense that the purchaser is his debtor; and if the plaintiff's attachment is served before the defendant makes such election, there is no debt upon which the attachment can operate. .Johnson v. Lamping, 34 Cal. 293. The purchaser of mortgaged property, who has agreed with the mortgagor to pay the mortgage debt, does not thereby become indebted to the mortgagee, and is not sub- ject to garnishment in a suit against the latter. Ilartman v. Olvera, 54 Cal. 61. A third party, committing a trespass against the defendant in an attachment suit, is liable to such defendant for damages; but the defendant alone has the right to waive the tort, and he cannot be deprived thereof by his creditors, who have no right to treat such tort-feasor as the defendant's debtor. .Tohnson v. Lamping, 34 Cal. 293. Deposits in bank. Where moneys have been placed on general deposit in a bank, and negotiable certiticates of deposit have §544 ATTACHMENT. 562 been issued to the depositor for the amount, there is nothing left in the possession of the bankers, belonging to the depositor, upon ■which an attachment can fasten; the bank- ers being liable to pay the amount to the holders of the certificates, whoever they may be, on presentation. McMillan v. Eich- ards, 9 Cal. 365; 70 Am. Dec. 655. A sav- ings bank cannot avoid its liability to pay over the money of a depositor, on a gar- nishment at the suit of the depositor's creditor, on the ground that its by-laws, assented to by the depositor, make his pass-book transferable to order; the pass- book not being a negotiable instrument, nor capable of being made such bv agree- ment. TVitte V. Vincenot, 43 Cal. 325. Partnership assets. Money derived from the sale of partnership property conveyed by an individual partner to a trustee for his wife, in fraud of creditors of partnership, is liable to garnishment. Burpee v. Bunn, 22 Cal. 194. Moneys in the hands of a receiver, in a suit for dissolution of partnership, are subject to attachment, at any time before a final decree of dissolution and distribution. Adams v. Woods, 9 Cal. 24; and see Adams V. Woods, 8 Cal. 152; 68 Am. Dec. 313; Adams v. Haskell, 6 Cal. 113; 65 Am. Dec. 491. Promissory notes. The indebtedness of the maker upon a promissory note, after its maturity, is not the subject of attachment, unless the note is at the time in the posses- sion of the defendant. Gregory v. Higgins, 10 Cal. 339. A promissory note, held by a third party as collateral security for a debt of a defendant in attachment, is a credit, and is attachable by garnishment, and the lien of the attachment upon the note trans- fers itself to the money collected thereon by the garnishee. Deering v. Richardson-Kim- ball Co., 109 Cal. 73; 41 Pac. 801; Gow v. Marshall, 90 Cal. 565; 27 Pac. 422. Property in custodia legis. Where money is in the hands of the clerk of the court, deposited, under an order of the court, by the assignee of an insolvent, pending liti- gation as to the proper disposition thereof among the creditors, and an order of dis- tribution is made by the court, the sum found due each creditor is a debt due the creditor from the clerk, and may be attached in his hands by a creditor of the creditor. Dunsmoor v. Furstenfeldt, 88 Cal. 522; 22 Am. St. Eep. 331; 12 L. R. A. 508; 26 Pac. 518; Estate of Nerac, 35 Cal. 392; 95 Am. Dec. 111. Money voluntarily paid into court, without an order of court, by a garnishee who has filed a complaint in interpleader against attaching creditors, is subject to attach- ment (Kimball v. Richardson-Kimball Co., Ill Cal. 386; 43 Pac. 1111); as is also money placed in the hands of an agent to pay creditors, who have not agreed to look to the agent for payment. Chandler V. Booth, 11 Cal. 342. Money of a prisoner under sentence of life imprisonment is at- tachable in the hands of a chief of police, who holds it as bailee, and not in his offi- cial capacity, where it has nothing to do with the conviction on the criminal charge. Coffee V. Haynes, 124 Cal. 561; 71 Am. St. Eep. 99; 57 Pac. 482. Surplus money remaining in the hands of trustees after the satisfaction of the judgment by the sale of land on foreclosure, is subject to the lien of an attachment levied upon the equitv of redemption. Brown v. Campbell, 100 Cal. 635; 3S Am. St. Eep. 314; 35 Pac. 433; and see Knight v. Fair, 9 Cal. 117; McMillan v. Eichards, 9 Cal. 365; 70 Am. Dec. 655; Halsey v. Martin, 22 Cal. 645. Liability of garnishee. The liability of a garnishee to the plaintiff is direct, for the value of the goods in his possession or under his control (Eoberts v. Landecker, 9 Cal. 262; Herrlich v. Kaufmann, 99 Cal. 271; 37 Am. St. Eep. 50; 33 Pac. 857; Carter v. Los Angeles Nat. Bank, 116 Cal. 370; 48 Pac. 332); and the liability dates from the service of the writ (Johnson v. Carry, 2 Cal. 34; Norris v. Burgoyne, 4 Cal. 409; Eoberts v. Landecker, 9 Cal. 262); but no such liability exists where an exe- cution is levied upon such debts. Nord- strom V. Corona City W^ater Co., 155 Cal. 206; 132 Am. St. Eep. 81; 100 Pac. 242. The acceptor of a bill of exchange, who, in accepting it, does not inform the payee of an attachment previously served upon him as a garnishee in a suit against such payee, is estopped from setting up such garnishment against a purchaser for a valuable consideration. Garwood v. Simp- son, 8 Cal. 101. Any estoppel which may exist against the garnishee in favor of the attachment debtor, by refusal of further payments on the ground that the debt had been attached, to deny the efficacy of the notice of garnishment, cannot avail the plaintiff as attaching creditor, who relies upon an attachment in his favor which did not include the debt. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Eep. 253; 83 Pac. 36. A garnishee is bound to protect the rights of all parties to the goods or credits at- tached in his hands; and if, after notice, though execution may have been awarded against him, he satisfies the judgment, it is in his own wrong, and constitutes no valid defense to the claim of the assignee. Hardy v. Hunt, 11 Cal. 343; 70 Am. Dec. 787. The measure of the garnishee's lia- bility depends upon the amount of prop- erty in his possession or under his control at the time the writ is served. Eoberts v. Landecker, 9 Cal. 262. Partnership prop- erty can be seized under an execution against one of the partners, for his indi- vidual debt, and sold; but the interest which passes by the sale is only the in- terest of the debtor partner in the re- siduum of the partnership property, after the settlement of the partnership debts- 563 GARNISHEE — LIABILITY OF AND DEFENSES BY. §544 Robinson v. Tevis, 38 C'al. Gil. The return of the officer is not coiu'hisive against the garnishee. Broadway Ins. Co. v. Wolters, 128 Cal. 162; 60 Pac.*766. Defenses by garnishee. The garnishee can plead any defense against his creditor, and also tliat his debt has been satisfied, or that he failed to recover judgment, or that it was reversed or was barred, tarter V. Los Angeles Nat. Bank, IIG Cal. ilTO; 48 Pac. 332. A garnishee does not relieve himself of liability by refusing to disclose his indebtedness to the judgment debtor, by holding the money in his possession until served with an execution in another case, and by then paying the money to the sheriff without any suggestion as to the former service or the appropriation of the payment; in such a case, the garnishee should be ordered to pay to the judgment creditor the amount of his indebtedness to the judgment debtor. Finch v. Finch, 12 Cal. App. 274; 107 Pac. i)94. The delivery of an ordinary cheek upon a bank for part of the fund standing therein to the credit of the drawer, docs not, prior to its presentation, operate as an assignment of the fund pro tanto, and a garnishment of the fund under execution, as belong- ing to the drawer, will prevail over all unpresented and unaccepted cheeks pre- viously drawn. Donohoe-Kelly Banking Co. v. Southern Pacific R. R. Co., 138 Cal. 183; 94 Am. St. Rep. 28; 71 Pac. 93. The lia- bility created by a garnishment is never barred by the statute of limitations. Car- ter v. Los Angeles Nat. Bank, 116 Cal. 370; 48 Pac. 332. The running of the statute of limitations in favor of a debtor is not inter- rupted by making him a garnishee, where he denies any indebtedness, or disputes the defendant's title to any property in his possession. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. This section is intended to apply to those cases, only, in which the garnishee admits his indebtedness as to the defendant in at- tachment, or admits his possession or con- trol of specific property of the defendant: in such case he can discharge his admitted obligation by paying the debt to the sheriff or delivering possession of the defendant's property; and if he chooses to retain pos- session of the defendant's property, or to withhold payment of a sum admitted to be due, he thereby makes himself, by his own act, the trustee of a fund or of the spe- cific property in custodia legis, and in that character liable to account to the party entitled, whenever called upon. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36; and see Carter v. Los Angeles Nat. Bank, 116 Cal. 370; 48 Pac. 332. No equitable circumstances need be shown, to justify the suit brought by the judgment creditor against the garnishee. Carter v. Los Angeles Nat. Bank, 116 Cal. 370; 48 Pac. 332. To prevent the debt of a gar- nisliee to his creditor becoming barred by the statute of limitations after attach- ment, where the creditor refuses to sue thereon, the garnishor may sue the gar- nishee upon his contingent liability, mak- ing the creditor of the garnishee a party to the suit, and thereby protect the in- terests of ail parties. Clyne v. Easton, 148 Cal. 287; 113 Am. St. Rep. 253; 83 Pac. 36. A judgment cannot be entered against a garnishee uj)on the return of the sheriff, without further proceedings, and without the appearance of the garnishee in the action, for the amount stated to be due, and a judgment entered in such manner is void upon its face. Broadway Ins. Co. v. Wolters, 128 Cal. 162; 6U Pac. 766. The judgment against a garnishee should be simply for the amount due: an order to pay the money into court is improper. Smith v. Brown, 5 Cal. 118; Brummagin V. Boucher, 6 Cal. 16. Proceedings supple- mentary to execution need not be invoked by the plaintiff in an attachment prior to the commencement of the action against the garnishee upon his statutory liability, where he does not seek the discovery of the property itself, or to enforce his lien upon it, but alleges that the garnishee has fraudulently disposed of the property and converted the proceeds to his own use. Roberts v. Landecker, 9 Cal. 262; Robin- son V. Tevis, 38 Cal. 611; Herrlich v. Kauf- mann, 99 Cal. 271; 37 Am. St. Rep. 50; 33 Pac. 857. When the debt is barred against a judgment debtor, who has been garnished, before the liability of the gar- nishee is sought to be enforced by the at- taching creditor, the right of the latter to maintain an action against the gar- nishee is also barred. Clyne v. Easton, 148 Cal. 2S7; 113 Am. St. Rep. 253; 83 Pac. 36. Having once invoked the stringent pro- visions of the attachment law, the plain- tiff cannot resort to other remedies to the prejudice of the defendant, so long as he relies upon his attachment lien; but when the garnishee has disposed of the property and converted the proceeds to his own use, and the plaintiff neither seeks to enforce his attachment lien on the property nor asks to obtain its discovery to subject it to his debt, his means of enforcing the liability of the garnishee for the value of goods in his possession or under his control at the time of the attachment is by independent action. Roberts v. Lan- decker, 9 Cal. 262; Robinson v. Tevis, 38 Cal. 611; Herrlich v. Kaufmann, 99 Cal. 271; 37 Am. St. Rep. 50; 33 Pac. 857. CODE COMMISSIONERS' NOTE. 1. Gener- ally. The doctrine of garnishment, though regu- lated, in part, by statute, is a common-law proceeding; and in proceedings against a garnishee the parties may demand a jury trial. Cahoon v. Levy, 5 Cal. 294. The liability dates from the service on the garnishee. Johnson v. Carrv, 2 Cal. 33. 2. EfTect of garnishment. A garnishment served upon the owner, in a suit against the head con- §545 ATTACHMENT. 564: tractor, after the commencement of the building and before notice served, prevails over the lien of a subcontractor. Cahoon v. Levy. 6 Cal. 295; 65 Am. Dec. 515. The lien of a subcontractor filed, and notice given to the owner of a building, within thirty days after the completion of the work, under' the act of 1855, attaches from the time the work was commenced, and takes prece- dence over a garnishment served on the owner against the contractor, after the work was com- menced, and before the filing and serving notice of lien. Tuttle v. Montford, 7 Cal. 358. Where A., who carried on a printing-oftice, and was in- debted to the hands of the office, placed in the hands of B. a certain amount of money, with di- rections to B. to pay the hands, which B. ne- glected to do, and where there was no evidence that the hands agreed to look to B. for their money, or that A. was indebted to the hands in an amount equal or appro.ximate to the sum in B.'s hands, and the money was subsequently at- tached in the hands of B., at the suit of C. against A., it was held that the monev was liable to the attachment. Chandler v. Booth, 11 Cal. 342. The fact that the defendant in an action for the re- covery of money has been garnished by a credi- tor of the plaintiff constitutes no defense, and cannot be set up in bar. The remedy of defend- ant in such case is by motion, based upon affi- davit of the fact, for stay of proceedings until the action against the plaintiff or the attachment is disposed of. McKeon v. McDermott. 22 Cal. 667; 83 Am. Dec. 86; Pierson v. McCahill, 21 Cal. 122. Money deposited with the sheriff, by a defendant, to procure the release of an attach- ment is in the custody of the law; but when the parties, by agreement, take it out of the hands of the sheriff and loan it out to third parties, these parties are not the bailees of the sheriff, § 545. Citation to garnishee to appear before a court or judge. Any per- son owing debts to the defendant, or having in his possession, or nnder his control, any credits or other personal property belonging 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 respecting the same. The defendant may also be required to attend for the purpose of giving informa- tion respecting his property, and may be examined on oath. The court or judge may, after such examination, order personal property, capable of manual delivery, to be delivered to the sheriff on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. Compare, "Proceedings Supplementary to Exe- cution." Post, §§ 714-721. Legislation 8 545. Enacted March 11, 1872; re-enactment of Practice Act, § 128, as amended by Stats. 1855, p. 197. and the money ceases to Toe in the custody of the law, and can only be reached on proceedings sup- plementary to execution, in the same manner a» other debts are reached. Hathaway v. Brady, 26 Cal. 586. The defendant, previous to the suit of the plaintiff against the R. S. Mining Co., sued the company, and obtained judgment against it by default. The judgment was made to draw a certain rate of interest, without there being any prayer for such relief in the complaint, and was erroneous in certain other respects. On appeal, the judgment was modified in certain respects. There was no stay of proceedings in the court be- low, and before the decision on appeal the de- fendant had taken out an execution, and caused the mining claims of the R. S. Mining Co. to be sold. At the sale, the defendant bid the full sum for which his execution called, and became the purchaser. He paid the sheriff no money, except his fees on the execution, but gave him a receipt for a sum equal to the face of the execution, less the fees paid to the sheriff. The R. S. Mining Co. had ceased to work their mine prior to this sale. After the sale, a contract was made be- tween the defendant and the company, by which the latter agreed to work the mine during the time allowed for redemption, and pay over the proceeds to the defendant, and the latter agreed to pay all the expenses of working, and to pay the company wages. Under this contract the de- fendant received from the mine, over and above expenses, the sum of seven thousand dollars in gold-dust. Plaintiff, as an attaching creditor of the R. S. Mining Co., brings suit against the de- fendant as garnishee. Held, that the case pie- sented failed to make the defendant a debtor of the company within reach of plaintiff's attach- ment. Johnson v. Lamping, 34 Cal. 295. Examination of garnishee. "Where a gar- nisliee. in discharge of a rule, answers, on oath, that he was released by the plain- tiff from his obligation to answer, and that the plaintiff had abandoned his ex- amination, he should be discharged with- out further delay, unless his answer is controverted bv the affidavit of the plain- tiff. Ogden V. Mills. 3 Cal. 253. The pro- visions of this section were intended for the securit.v of the plaintiff, and not to confer a privilege upon the garnishee, and the plaintiff may or may not, at his elec- tion, require the garnishee to appear and answer on oath, and his liability will not be affected by the failure of the plaintiff to take such step. Eoberts v. Landecker,. 9 Cal. 262; Eobinson v. Tevis, 36 Cal. 611. A garnishee will be discharged of his lia- bility to answer, by laches of the plaintiff to proceed with the examination. Ogden V. Mills, 3 Cal. 253. A garnishee can only be required to answer as to his lia- bility to the debtor defendant at the time of the service of the writ. Norris v. Bur- goyne, 4 Cal. 409. Upon proceedings sup- plementary to execution, where there are other persons claiming liens upon money in the possession of the garnishee, the court cannot order the garnishee to pay money in his possession to the plaintiff, but is authorized only to make an order to the effect that the plaintiff may bring an ac- tion against the garnishee as provided by § 720, post, to which action other persons claiming liens upon the money by prior attachments might be made or become par- 565 EXAMINATION OF DEFENDANT — PLEDGE — INVENTORY, ETC. §540 ties. Deering v. Richardson-Kimball Co., 1U9 Cal. 73; 41 Pac. SOI. Examination of defendant. A defend- ant, iti,'ainst whose property a writ of attac'hiiient has been issued, cannot be compelled to attend before tlie judge or a referee and submit to an examination as "to the situation and condition of his prop- ■erty, nor can he be compelled to deliver up his property. Ex parte Kickleton, 51 Cal. 316. Attachment of pledge. The interest of the jdedgor can only be reached by serv- ing a garnishment on the pledgee, and not by a seizure of the pledge: the law wisely provides that the pledgee shall not be de- prived of his possession, unless it be by an order made after examination, and on jsuch terms as may be just, having refer- ence to any lieus thereon or claims against the same; by this method the rights of all the parties may be protected, and it is the only method by which the interest of the pledgor can be subjected to the writ. Tread well v. Davis, 34 Cal. 601; 94 Am. Dec. 770. CODE COMMISSIONERS' NOTE. See note to -preceding seclion. Where a Karnishee answers on oath that he was released by the plaintitT, and that the plaintiff had abandoned his examination, he should be discharged by the court, unless his answer is controverted by the affidavit of the plaintitT. Ogden v. Mills, 3 Cal. 25;?. He can only be required to answer as to his liability, to the debtor, at the time of the service of the gar- nishment. Norris v. Burgoyne, 4 Cal. 409. He should be allowed to amend his answer, whenever it appears that he was mistaken or in error, and that either could not have been reasonably avoided. Smith v. Brown, 5 Cal. 118. Where B. ■was garnished in a suit against C, the day before he accepted an order drawn by A. in favor of C, but failed to inform C. thereof; and C., for a valuable consideration, sold the order, as indorsed, to D., an innocent purchaser. It was held, that B. was estonped from setting up against it any antecedent matter, and is liable to D. for the full amount thereof. Garwood v. Simpson, 8 Cal. 101. A plaintiff who has sued out an attachment, and given the necessary notice to a garnishee tliat the property in his hands is attached, and subse- quently the garnishee fraudulently disposes of iho jjropcrty, may waive his lien on the property and iiring suit for the value of the property against the garnishee. Roberts & Co. v. Landecker, 9 Cal. 20'J. Unless the answer of a garnishee discloses liens having priority, judgment must be rendered for the amount he admits is due. Cahoon v. Levy. 4 Cal. 244. Garnishment of bailor. Hardy v. Hunt, 11 Cal. 343: 70 Am. Dec. 787. An order re- quiring the garnishee to pay into court the amount for which judgment has been rendered against him, is improper. Smith v. Brown, 5 Cal. 118; r>rummagim v. Boucher, 6 Cal. 16. The provis- ions of this section do not confer a privilege upon the garnishee. The plaintiff may or may not re- quire the garnishee to appear and answer on oath, and his liability will not be affected by the fail- ure of the plaintiff to take such a step. Roberts 6 Co. V. Landecker, 9 Cal. 262. Where shares of stock in a corporation have been regularly transferred as security for a loan, the corporation is no longer in privity with the mortgagor, and the mortgagee is the only proper garnishee in a suit against the mortgagor, in order to attach his interest in the corporation. Edwards v. Beugnot, 7 Cal. 162. After the delivery and presentation of an order, a debt due by the drawee cannot be reached on attachment issued by the creditors of the drawer. Wheatley v. Strobe, 12 Cal. 92; 73 Am. Dec. .522. Plaintiff delivered to defendants gold-dust, to be forwarded to San Francisco, to be coined and returned. The dust belonged to five persons, partners in mining, of whom plain- tiff and C. were two. While the dust was in the hands of the defendants, C. sold to plaintiff his interest in it, and gave a receipt evidencing the sale. Defendants after this received coin made of the dust, and a creditor of C. attached the coin by garnishing defendants. Defendants had no no- tice of the sale to plaintiff until the day after the attachment, when plaintiff demanded C.'s share of the coin. It was held, that plaintiff was en- titled to the coin; that the dust in defendant's hands was in the constructive possession of all the five owners, C. having no exclusive interest in any part until it was converted into coin and divided among the owners; that C.'s right in the dust was a chose in action, which he could assign by ordei in favor of the purchaser or assignee, and after such order, neither C. nor his creditors could claim any right to the money, and that the statute of frauds has no application to a case like this. Walling v. Miller, 1.5 Cal. 33. § 546. Inventory, how made. Party refusing to give memorandum may 136 compelled to pay costs. The sheriff must make a full inventory of the property attached, and return the same with the Avrit. To enable him to make such return as to debts and credits attached, he must request, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each ; and if such memorandum be refused, he must return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay tlic costs of any proceedings taken for the purpose of obtaining information re- specting the amounts and description of such debt or credit. garnishee has possession and control, and which may be delivered up or transferrdl to the sherifi': a garnishment of "certain credits belonging to the defendant," which a corporation has in its possession or under its control, is not an attachment of a debt due from the corporation to the defendant. Gow V. Marshall, 90 Cal. 565; 27 Pac. 422. Return of writ, generally. See post, § .559. Legislation § 546. Enacted March 11. 1873; basicl on Practice .Act, § 129. which had the word ""shall" instead of "must." in each instance. Debt and credit, distinguished. A "debt" is monev owing by the garnishee to the •defendant, which may be paid over to the sheriff; but a "credit" is something Iselonging to the defendant, of which the !§ 547-549 ATTACHMENT. 560 § 547. Perishable property, how sold. Accounts without suit to be col- lected. If any of the property attached be perishable, the sheriff must sell the same in the manner in which such property is sold on execution. The proceeds, and other property attached by him. must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The sheriff's receipt is a suffi- cient discharge for the amount paid. of other property, which would materially' depreciate in value from other causes than decay, cannot be made, except by order of the court, under § 548, post. Witherspoou V. Cross, 135 Cal. 96; 67 Pac. 18. Legislation g 547. Enacted March 11, 1872; based on Practice Act, § 130, which had (1) the word "shall" instead of "must," before "sell the same," and before "be retained," and (2) the words "shall be" instead of "is," after "receipt." Perishable property. The "perishable property" attached, that the sheriff may sell, under this section, without an order of the court, is such only as is subject to speedy and natural decay; but the sale CODE COMMISSIONERS' NOTE. Sale of per- ishable property. Davis v. Ainsworth, 14 How. Pr. 346. Collection of debts. Mechanics' etc. Bank v. Dakin, 33 How. Pr. 316; 50 Barb. 587; Heye v. Bolles, 2 Daly, 231. § 548. Property attached may be sold as under execution, if the interests of the parties require. Whenever property has been taken by an officer under a writ of attachment, and it is made to appear satisfactorily to the court or a judge thereof that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the court to abide the judgment in the action. Such order can be made only upon notice to the adverse party or his at- torney, in case such party has been personally served with a summons in the action. all be deposited with the latter court, as thereby the lien of the prior attachment would be lost; and the officer will not be protected by the order of such court in making such deposit, since, having both attachments in his hands, he must know that that court could deal only with the surplus remaining after the satisfaction of the first demand. Weaver v. Wood, 49 Cal. 297. Notice. The order of sale cannot be made, except upon notice to the adverse partv. Witherspoon v. Cross, 135 Cal. 96, 67 Pac. 18. Legislation § 548. 1. Enacted March 11, 1872; based on Practice Act, § 654, as amended by Stats. 1854, Redding ed. p. 72, Kerr ed. p. 101, § 66, which had (1) the words "in pursuance of the provisions of said act" after "writ of attach- ment," (2) the words "shall be" instead of "is," before "made to appear," and (3) the words "or a county judge" after "judge thereof." When enacted in 1872, it read same as at present, ex- cept that it contained the words "or a county judge," as in the Practice Act. 2. Amended by Code Amdts. 1S80, p. 4. Application of proceeds. The proceeds of property seized by an officer under at- tachment from two separate courts, and Bold under an order of the court on which the junior attachment isrsued, should not § 549. When property claimed by a third party, how tried. If any per- sonal property attached be claimed by a third person as his property, the same rules shall prevail as to the contents and making of said claim, and as to the holding of said property, as in case of a claim after levy upon execu- tion, as provided for in section six hundred and eighty-nine of the Code of Civil Procedure. Claim of third person to property. De- maud upon and notice to an officer are necessary, where the property is in the possession and apparent control of the de- fendant at the time of the seizure, before the claimant can maintain an action of claim and delivery. Taylor v. Seymour, 6 Cal. 512; Killey v. Scannell, 12 Cal. 73. Sureties on indemnity. Post, § 1055. Legislation « 549. 1. Enacted March 11, 1872; re-enactment of Practice .'Vet, § i:il. which rea■ luiii- Ann. (as. IDIJC, -Id.'^. CODE COMMISSIONEKS' NOTE. The torm "judgment" means a final one. Wright v. Row- land, 4 Keycs, l(i5; 36 How. Pr. 24^. Tho ap- jiliciition of the atlarhing oredilor to ompel the sheriff to pay over the proceeds of properly at- liH.'hed, there being contlicting claims between several attaching creditors, may be made by mo- tion. If notice of the motion is not given by the ])iirty to the other attaching creditors, it is the duty of the sheriff to do so, if he wishes the de- cision to bind them. Dixey v. Pollock, 8 Cal. 570. § 551. When there remains a balance due, how collected. If, after selling all the property attached hy him remaining in hi.s hands, and applying the proceeds, together with the proceeds of any debts or credits eoUectetl by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the sheriff must proceed to collect such balance, as upon an execution in other cases. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment. Proceedings supplementary to execution. Post, §§ 714 et seq. Legislation 8 551. Enacted March 11, 1873; ■based on Practice Act, § 133, which had the word "shall" instead of "must," in each instance. Deposit with clerk not payment. A deposit, by the defendant, of the amount of the judgment against him, with the ■clerk of the court, pending an appeal by the plaintiff, is not such a payment as entitles him to a release of the property held under the writ of attachment. Sagely V. Livermore, 45 Cal. 613. § 552. When suits may be commenced on the undertaking. If the execu- tion be returned unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section five hundred and forty or sec- tion five hundred and fifty-five, or he may proceed, as in other cases, upon the return of an execution. Surplus moneys. After the satisfaction of the judgment of the attachment credi- tor, any surplus moneys that remain are subject to the rights of the judgment debtor or his assignee (Sexey v. Adkison, 40 Cal. 408); and they are liable to gar- nishment. Graham v. Endicott, 7 Cal. H4. CODE COMMISSIONERS' NOTE. When the attachment is satisfied, the property not disposed of, as well as surplus moneys, are subject to the riirhts of the debtor or his assignee. Sexey v. Adkison, 40 Cal. 408. Legislation 8 552. Enacted March 11, 1872; ■based on Practice Act, § 134, which read as at present, except for the changes in the section numbers. Jurisdiction. Where a judgment for costs, in an action brought in the superior court in which an attachment is issued, is rendered for less than three hundred dol- lars, and an appeal therefrom is taken to the supreme court, and the execution of the judgment stayed, a justice's court, and the superior court on appeal, have juris- diction of an action to enforce the bond given to secure the payment of the costs in the attachment suit, although the ap- peal from the judgment therein is still pending and undetermined. Karrv v. Su- perior Court, 162 Cal. 281; 128 Pac. 760. Demand. The object of a demand is to enable a i)arty to perform his contract or discharge his liability, according to the nature of it, without a suit at law. There is no stereotyped form or manner of de- mand: any language intended to constitute a demand, and which plainly informs the party of whom the demand is made that he is required to perform the duty or obli- gation to which the demand refers, is suth- cient; but, like all allegations of fact, the demand should be pleaded with directness and certainty. Mullally v. Townsend, 119 §552 ATTACHMENT. 572 Cal. 47; 50 Pae. 1066. A demand for the redelivery of property released by_an un- dertaking given under §§ 554, 555, post, mav be made by either the officer or the plaintiff in the attachment suit. Brownlee V. Eiffenburg, 95 Cal. 447; 30 Pae. 587. A demand that the sureties fulfill the obli- gation as expressed in the undertaking is sufficient: the fact that such demand is coupled with a demand that the defendant pay the amount of judgment recovered in the attachment suit does not affect it, although the undertaking was not to pay the judgment recovered, where such judg- ment was less than the conceded value of the goods. Mullally v. Townsend, 119 Cal. 47; 50 Pae. 1066. The return of a sheriff on an execution issued in an attachment suit, showing a demand upon the officers of the defendant corporation for the pay- ment of the amount named in the execu- tion, and that he was informed by the officers of the corporation that they had no property of the defendant in their pos- session, sufficiently shows that the defend- ant's property, previously seized under attachment, and released on bond, was not delivered to the sheriff pursuant to the provisions of the bond. Hammond v. Starr, 79 Cal. 556; 21 Pae. 971. Where the judg- ment recovered was less than the value of the property attached, as fixed in the bond for release, and less than its admitted value at the time of the release, the pay- ment of the amount of the judgment is the full measure of the obligation of the sureties, and a demand upon them for the amount of such judgment is sufficient, where there was a refusal of the defend- ant to redeliver the property. Mullally V. Townsend, 119 Cal. 47; 50 Pae. 1066. Where the undertaking was, that, in case of default by the principal to redeliver the property to satisfy the judgment against him, the undertakers would, on demand, pay the value of the property released, demand, and refusal to pay the judgment and redeliver the property re- leased, are not sufficient to fix the lia- bility of the sureties: there must also be a demand for the payment of the value of the property. Pierce v. Whiting, 63 Cal. 538; Mullally v. Townsend, 119 Cal. 47; 50 Pae. 1066. Where the undertaking was, that the defendant would, on demand, pay a judgment, if obtained by the plaintiff, a complaint to recover on the undertaking is insufficient, which contains no averment of any demand, and no allegation showing the amount of the judgment to be unpaiil. Kanouse v. Brand, 11 Cal. App. 669; 106 Pae. 120. Where the undertaking was, that the defendant would pa^' the amount of the judgment on demand, the sureties become immediately liable, without de- mand or notice, where there was a demand upon and refusal by the defendant (Gard- ner V. Donnelly, 86 Cal. 367; 24 Pae. 1072); and -where the liability was, by the terms of the bond, joint and several, and ther principal was not a party to the suit, de- mand upon the sureties alone is sufficients Mullally v. Townsend, 119 Cal. 47; 50 Pae. 1066. Demand need not be made upon an insolvent debtor for the return of the- property, before an action can be main- tained against the sureties on his bond to release the attached property. Eosen- thai V. Perkins, 123 Cal. 240; 55 Pae. 804. The sheriff's return upon execution issued in attachment may show a sufficient de- mand. Hammond v. Starr, 79 Cal. 556; 21 Pae. 971. Actions on undertaking. This section, makes the issuance and return of an exe- cution a condition precedent to the right to commence an action upon an undertak- ing given pursuant to § 555, post. Brown- lee V. Eiffenburg, 95 Cal. 447; 30 Pae. 587; Eosenthal v. Perkins, 6 Cal. Unrep. 21; 53 Pae. 444. The direct collection from the sureties, of the judgment against the defendant, is not authorized. HoUaday v. Hare, 69 Cal. 515; 11 Pae. 28. The plain- tiff, being the real party in interest, may sue on a bond executed in the name of the sheriff (Curiae v. Packard, 29 Cal. 194) ; and he may institute and maintain his action against the sureties on the same- day on which payment was demanded of and refused by the defendant. Gardner V. Donnelly, 86 Cal. 367; 24 Pae. 1072. Immediately upon demand on the defend- ant, and his failure to redeliver the prop- erty as required by the terms of the- undertaking, the sureties become liable to pay the full value of the property at- tached. Metrovich v. Jovovich, 58 Cal. 341. Where the defendant, and one who- has acquired a mortgage lien upon the- property after its release upon the giving of the delivery bond, refuse to redeliver the property after judgment, except upon the payment of the amount of the mort- gage lien, there is such a refusal as to fix the liability of the sureties on the undertaking: the plaintiff is not bound to accept the property burdened with a lien placed upon it after its release from at- tachment. Mullally V. Townsend, 119 Cal. 47; 50 Pae. 1066. The plaintiff is not required to look to the undertaking alone: he may proceed by execution against the- property of the defendant, and if the exe- cution is returned unsatisfied, he may proceed upon the undertaking. Low v.. Adams, 6 Cal. 277. The undertaking can- not be enforced, pending appeal, where a stav bond is given bv the defendant.. Ayfes V. Burr, 132 Cal. 125; 64 Pae. 120. Pleading, variance. Where the complaint,, in an action upon the undertaking, alleges- that demand was made upon the defendant "for the payment of said judgment, with in- terest thereon, and costs," and that defend- ant neglected and refused "to pay the bal- ance due on said judgment, or any portion thereof," the allegation of demand and re- 573 PLEADING, VARIANCE — LIABILITY OF SURETIES. §552 fusal is sufficient, in the absence of a sjxvial demurrer, where a j)ortiou of the judgineiit had already been pairoperty. Metrovich v. Jovovieh, 58 Cal. 341. Plaintiff's possession in replevin. The possession obtained by the plaintiff in re- § 556. When a motion to discharge attachment may be made, and upon what grounds. The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, applj^, on motion, npon reasonable notice to the plain- tiff, to the court in which the action is brought, or to a judge thereof, that the writ of attachment be discharged on the ground that the same was im- properly or irregularly issued. Legislation g 556. 1. Enacted March 11, 1872 for answering expires, apply, on motion, upon (rei iiactment of Practice Act, § 138, as amcmled rs^asonable notice to the plaintiff, to the court in "by Stats. 1860, p. 301), and then read: "The which the action is brought, or to the judge defendant niay, also, any time before the time thereof, or to a county judge, that the attachment 1 Pair. — 37 plevin is only tenii)orary: it does not divest the title nor discharge the lieu. Hunt v. Robinson, 11 Cal. 262. Right of obligor in bond for release of at- tached property to attack attachment. See note 3-' I., l;. A. (N. .S.) 401. Amendment of claim or pleading as discharge of sureties on bonds given to dissolve attach- ments. .Set! noti- 4'J L. K. A. ( .\. S.; -IHA. CODE COMMISSIONEKS' NOTE. 1. Effect of undertaking. It is nul a sub-stiliition of security. Low V. Adams, 6 Oal. 277. A bond given volun- tarily is valid at common law. I'iihner v. \ance, 13 Cal. 553. A substantial compliance with this section, in respect to the undertaking, is sufficient, tleyneniann v. Eder, 17 Cal. 433; Palmer v. Vance, 13 Cal. 553. If the sheriff lakes a sufficient statutory undertaking, he has no further respon- sibility. Curiae v. Packard. 29 Cal. 194. 2. Action on the undertaking. In an action on the uiuli-rlukiiiK, the complaint should allege that the properly attached was released upon the de- livery of the undertaking. Williamson v. Blat- ton, 9 Cal. 500. Whether each obligor is liable to the sheriff for the whole amount of any judg- ment against him, leaving the question of contribu- tion to be settled between them, was questioned in White v. Fratt, 13 Cal. 521. Where defend- ant applied to the court for a discharge of the attachment, and an undertakins was executed by D. and R., reciting the fact of the attachment, and that "in consideration of the premises, and in consideration of the release from attachment of the property attached as above mentioned," they undertake to pay whatever judgment plaintiff may recover, etc., the court made an order discharging the writ and releasing the property. In an ac- tion against the sureties on the undertaking, it was held, that the complaint need not aver that the property was actually released and delivered to the defendant; that as the consideration for the undertaking was the release of the property, and as the complaint avers such release, in conse- quence and in consideration of the undertaking, by order of the court, which is set out, the actual release and redelivery of the property to defend- ant is immaterial, the plaintiff having no claim on it after the undertaking was given and the order of release made. McMillan v. Dana, 18 Cal. c39. An undertaking, given to a sheriil' to pro- cure a release of property attached, is for the benefit of the plaintiff, who may sue on it. Curiae V. Packard, 29 Cal. 194. If'the defendant ob- tains an order for the release of property upon an undertaking executed by sureties, conditioned to pay the plaintiff any judgment he may recover in the action, and the property is thereupon re- leased: whenever the liability of the sureties is fixed, by the rendition of a judgment in favor of the plaintiff, the sureties have a right to tender the plaintiff the full amount of the judgment, and if he refuses to receive the same, the sureties are discharged from their obligation on the undertak- ing. Hayes v. Josephi, 26 Cal. 540; Curiae v. Packard, 29 Cal. 194. Tender, by sureties, of the full amount of judgment recovered, is equivalent to payment or release by said plaintiff. Norwood V. Kenfield, 34 Cal. 329; Curiae T. Packard, 29 Cal. 194. 556 ATTACHMENT. 578 be discharged on the ground thnt the writ was improperly or irregularly issued." 2. Amended by Code Amdts. 1873-74, p. 309, to read as at present, except that (1) it had the vrord "the" instead of "a" before "judge thereof," and (2) had the words "or to a county judge" after these words. 3, Amended by Code Amdts. 1880, p. 4. Who may move for discharge. A de- fendant, who, more than four months after levy of attachment, secures a certificate of discharge in bankruptcy, does not thereby become entitled to file a supple- mental answer and procure a discharge of the attachment: the only effect of such discharge is to limit the judgment recov- erable in the attachment suit, and the plaintiff is entitled to judgment for the enforcement of his attachment lien, and if such attachment has been discharged, he is entitled to recover upon the undertak- ing, upon the giving of a statutory bond. Harding v. Minear, 54 Cal. 502. Persons not named as defendants, but claiming to be such, may move to discharge the writ, if, in their affidavits, they state that they are defendants in the action, misnamed in the plaintiff's complaint and affidavit, and the plaintiff does not deny such affidavits. Sparks v. Bell, 137 Cal. 415; 70 Pac. 281. Judgment creditors of the defendants may intervene to set aside the attachment, be- cause void as to them. Davis v. Eppinger, 18 Cal. 378; 79 Am. Dec. 184. Where a subsequent attaching creditor intervenes to set aside a prior attachment on the ground of fraud, and the court finds that only a portion of the debt on which the prior attachment issued was fraudulent, the lien of the prior attachment should be postponed only as to the fraudulent por- tion (Coghill V. Marks, 29 Cal. 677); and an order, on motion of an intervener, en- tirely setting aside the plaintiff's attach- ment, will be modified on appeal, so as merely to postpone the plaintiff's lien to that of the intervener. Speyer v. Ihmels, 21 Cal. 280; 81 Am. Dec. 157. An assignee in insolvency maj"^ move for a release of the attached property, although not a party to the record. Baum v. Raphael, 57 Cal. 361. A stranger cannot interfere ujion the ground of irregularity of the pro- ceedings: if the proceedings of the prior attaching creditor are not void, but void- able, a subsequent attaching creditor can- not object; only the defendant can object. Dixey v. Pollock, S Cal. 570. Notice of motion. The notice of motion should specify the grounds thereof, and wherein it will be urged that the writ was improperly issued. Freeborn v. Glazer, 10 Cal. 337; Loucks v. Edmondson, 18 Cal. 203. Motion for discharge. The only remedy for an improper attachment is a motion to set it aside, where no jurisdictional de- fect is apj>arent on the face of the pro- ceeding. Martinovich v. Marsicano, 150 Cal, 597; 119 Am. St. Rep. 254; 89 Pac. 333. The motion to discharge the writ may be made before the attachment is levied. Sparks v. Bell, 137 Cal. 415; 70 Pac. 281. The motion to dissolve cannot be turned into a demurrer to the com- plaint: thus, if the complaint sets forth a cause of action upon a contract, express or implied, it cannot be attacked for am- biguity or uncertainty, nor on the ground that it does not state a cause of action upon the contract. Hale Bros, v, Milliken, 142 Cal. 134; 75 Pac. 653. Evidence on hearing of motion. The complaint and the affidavit of attachment constitute the record, which may be con- sidered without proof upon a motion to dissolve the attachment; but when the motion is made upon matters appearing outside of the complaint and affidavit, the moving party must introduce evidence in proof of these facts: an oral admission of matter of evidence, made upon a previous motion, which was denied, and made only for the purpose of that motion, cannot dispense with evidence of the facts upon a subsequent motion to vacate the order denying the motion and to dissolve the at- tachment. Goldman v. Floter, 142 Cal. 388; 76 Pac. 58. The complaint, answer, and decree in liquidation proceedings against an insolvent bank may be read upon the motion to dissolve an attachment levied upon the funds of the bank, not- withstanding the plaintiff in the attach- ment proceedings is not a party in the liquidation proceedings. Crane v. Pacific Bank, 106 Cal. 64; 27 L. R. A. 562; 39 Pac. 215. "Improper" and "irregular" writ, defined. An attachment is proj>erly issued when issued iu a case provi(ied for by § 537, ante, and it is regularly issued when the requirements of §§ 538, 539, ante, are com- plied with; irregularities warranting a dis- charge of the writ usually appear upon the face of the affidavit or undertaking, or, where properly but prematurely issued, by a comparison with the summons and complaint. Where the attachment is im- properly issued, that is to say, in a case not provided for by statute, the evidence must usually be sought dehors the papers upon which it is evidently founded. Kohler v. Agassiz, 99 Cal. 9; 33 Pac. 741; Sparks v. Bell, 137 Cal. 415; 70 Pac. 281. Waiver of irregularities. Any irregu- larities in obtaining the attachment are waived by the defendant, where he ap- jiears and answers without taking advan- tage of them, by motion or otherwise, in the course of the proceedings: the process is merely auxiliary, and the judgment cures all irregularities. Porter v. Pico, 55 Cal. 165; Harvey v. Foster, 64 Cal. 296; 30 Pac. 849; Scrivener v. Dictz, 68 Cal. 1; 8 Pac. 609; Schwartz v. Cowell, 71 Cal. 306; 12 Pac. 252. The omission of the word "company," in the defendant's cor- porate name, in the original undertaking 579 AMENDMENTS — WRIT SHOULD BE DISCHARGED WHEN. §556 and affidavit, does not afTeet the attach- ment lien, and is waived by the appear- ance and answer of the corporation in its true name, witliout ol)icction. Ilaniinond v. Starr, 79 Cal. 556; 21 Pac. 971. Where property is attached, the right to apply for a discharge of the writ, under this section, is not waived because a release of the property was previously obtained by giving' the uument Co., 164 Cal. 58; 127 Pac. 502); nor can a receiver be ap- pointed to collect and preserve future rents to abide the result of an action, not in the nature of a suit in equity, to sub- ject the rents to the payment of a mort- gage debt, but which proceeds on the assumption of ownership, by the plaintiff, of the land and the jjrofits thereof (San Jose etc. Bank of Savings v. Bank of Madera, 121 Cal. 543; 54 Pac. 85); nor can the court by the appointment of a receiver, take from the mortgagor, or from any person claiming under him, the rents, is- sues, and profits of the mortgaged premises and apply them to the mortgage debt, un- ■ less the mortgage so provides in terms. Locke v. Klunker, 123 Cal. 231; 55 Pac. 993. Where, in a mortgage or deed of trust (whether it is a deed of trust or a simple mortgage is immaterial), a power is expressly conferred on the parties of the second part, in case default is made in payment of the principal or interest of the bonds, for which such mortgage or deed of trust was given as security, to enter upon and take possession of the mortgaged prop- erty, the appointment of a receiver of the property described in the mortgage or deed of trust is proper, where the mortgagors made default, and refused to surrender pos- session of the mortgaged property. Sacra- mento etc. R. R. Co. V. Superior Court, 55 Cal. 453. Where a railway corporation gave, as security for the payment of bonds, a mortgage to trustees, who were empow- ered, after default, to collect the income and apply it to the discharge of current expenses and taxes, upon default a court of equity has power to appoint the sur- viving trustee as receiver, with power to retain possession of the road and exercise the powers conferred by the mortgage. McLane v. Plaeerville etc. R. R. Co., 66 Cal. 606; 6 Pac. 748. Where, on a fore- closure sale of mortgaged premises, a sum sufficient to satisfy the debt secured by the mortgage is not realized, and the plain- tiff applies to the court for an order that the money derived from a sale of a crop grown on the premises be applied to the Iiayment of the deficiency, the court has authority to appoint a receiver. Mont- gomery v. Merrill, 65 Cal. 432; 4 Pac. 414; Treat v. Dorman, 100 Cal. 623; 35 Pac. 86. An objection, in an action of foreclosure, that the court appointed a receiver of the §564 RECEIVERS. 586 rents and profits of the premises during the pendency of the action, is answered by this section, which authorizes the ap- pointment of receiver, where the condition of the mortgage has not been performed, and the property is probably insufficient to discharge the mortgage debt. La Societe Franc^aise v. Selheimer, 57 Cal. 623. A receiver should not be appointed in actions of foreclosure, except upon a statement of facts showing that the actual value of the mortgaged premises is less than the debt secured, with interest and costs, and that resort to the rents and profits is necessary: a general statement in the complaint, that the mortgaged premises are insufficient to pay and discharge the mortgage debt, being of a mere conclusion, is insufficient (Bank of Woodland v. Stephens, 144 Cal. 659; 79 Pac. 379); as is also an allegation, without further showing, that the mort- gaged property was probably insufficient to pav the mortgage debt. Locke v. Klunker, 123 Cal. 231; 55 Pac. 993. The purchaser of property at a foreclosure sale is entitled thereto, and to its rents and profits, or to the value of the use and occupation thereof from the time of the sale up to the date of any redemption made; but where the judgment debtor re- mains in possession of mining property, working the same, and is insolvent, and the value of the property is liable to be destroyed through waste, and it is in the interest of all parties that the work should be continued, the purchaser is entitled to an order appointing a receiver (Hill v. Taylor, 22 Cal. 191; Walker v. McCusker, 71 Cal. 594; 12 Pac. 723; White v. White, 130 Cal. 597; 80 Am. St. Rep. 150; 62 Pac. 1062); but there is no provision in the codes, nor any decision, nor any principle, under which a purchaser is entitled to the appointment of a receiver to take charge of property, during the period of redemp- tion, to prevent the commission of waste. West V. Conant, 100 Cal. 231; 34 Pac. 705; Scott V, Hotchkiss, 115 Cal. 89; 47 Pac. 45; Mau v. Kearney, 143 Cal. 506; 77 Pac. 411. Where a mortgagee in possession has not committed waste, nor otherwise abused his position, the court has no power to appoint a receiver to collect the rents and profits of the mortgaged property and to pay them out, giving priority to a judg- ment debt and counsel fees over the claim of the mortgagee. Cummings v. Cummings, 75 Cal. 434; 17 Pac. 442. Where a suit is brought to enforce the specific execution of the terms and stipulations of a mort- gage, by which, on the happening of a specific event, the trustees, or the survivors of them, are entitled to take possession of the property mortgaged, hold it, receive the income arising from it and apply such income according to the terms of the mort- gage, the casus foederis, upon which the surviving trustee was to take possession, having occurred, it is within the jjrovince of a court of equity, and comes within the provision of the sixth subdivision of this section, authorizing the appointment of a receiver. McLane v. Placerville etc. R. R. Co.. 66 Cal. 606; 6 Pac. 748. No stipula- tion can confer jurisdiction upon the court to appoint a receiver in a case where the court has no such authority given by law. Scott V. Hotchkiss, 115 Cal. 89; 47 Pac. 45; Baker v. Varnev, 129 Cal. 564; 79 Am. St. Rep. 140; 62 Pae. 100. Thus, the court has no jurisdiction, in an action of foreclosure, to apjioint a receiver of rents and profits of mortgaged property, merely upon a stipulation in the mortgage for such appointment in case of default and foreclosure (Baker v. Varney, 129 Cal. 56-4 ; 79 Am. St. Rep. 140; 62 Pac. 100); and, notwithstanding the stipulation, the party who desires a receiver must state facts sufficient to show that the premises mortgaged are probably insufficient to pay the mortgage debt, with interest and costs. Scott V. Hotchkiss, 115 Cal. 89; 47 Pae. 45; Baker v, Varnev, 129 Cal. 564; 79 Am. St. Rep. 140; 62 Pac. 100; Bank of Woodland v. Stephens, 144 Cal. 659; 79 Pac. 379. In an action of foreclosure, where there is a stipulation in the mortgage that a re- ceiver may be appointed, and the mort- gagor is in possession of land on which there are growing crops, and there is an averment that the security is insufficient, the court is authorized to appoint a re- ceiver to take and hold the rents and profits to secure the debt. Scott v. Hotch- kiss, 115 Cal. 89; 47 Pac. 45. Where there is nothing^n the complaint to justify the appointment of a receiver pending a fore- closure suit, unless it be a stipulation in the mortgage providing for the appoint- ment of receiver on an ex parte applica- tion, it may be presumed that the order was made upon motion, and upon affidavits showing the facts necessary to give the court jurisdiction. Garretson Investment Co. V. Arndt, 144 Cal. 64; 77 Pac. 770. Receiver after judgment. The third subdivision of this section is very compre- hensive, and any suitable process or mode of proceedings may be adopted, conform- ably with the spirit of the code; and since the powers and duties of the person appointed by the court to execute convey- ances are fixed by the decree, it is imma- terial whether he is called a commissioner or a receiver. Scadden Flat Gold Mining Co. V. Scadden, 121 Cal. 33; 53 Pac. 440. Where judgment was entered in favor of the plaintiff in an action for divorce and alimony, and alimony was made a lien upon property of the defendant, the court has power to appoint a receiver to take possession of the proj^erty, collect the rents and profits, and sell the property, and pay the sums adjudged to be due (Huellmantel V. Huellmantel, 124 Cal. 583; 57 Pac. 582); and the court has power to appoint a re- ceiver, in whom legal title may be vested 587 AFTER JUDGMENT CORPORATIONS. §564 by a decree to make a conveyance, for the iJUrpose of carrying: a judgment into effect, in an action to compel a conveyance from the heirs of a deceased person, many of whom are minors (Scadden Flat Gold Mining Co. v. Scadden, 121 Cal. 33; 53 Pac. 440) ; but the court has no jurisdic- tion to appoint a receiver to carry into effect a judgment for the recovery of rents, where the execution of such judgment has been stayed by proper bond, pending an appeal therefrom by the defendant (San Jose etc. Bank of Savings v. Bank of Madera, 121 Cal. 543; 54 Pac. 85); nor, after the entry of a money judgment, to continue the receiver for the purpose of enforcing the judgment, where he was appointed pending the action, but took possession of no property before the judg- ment: his functions as a receiver ceased with the entrv of the judgment. White v. White, ISO Cal. 597; 80 Am. St. Rep. 150; 62 Pac. 1062. Actions of ejectment are not included in the cases specified in this section in which receivers may be named before judgment (Bateman v. Superior Court, 54 Cal. 285; Scott v. Sierra Lumber Co., 67 Cal. 71; 7 Pac. 131); but a receiver may be appointed in an action of eject- ment, after judgment, during the pendency of the appeal. Garniss v. Superior Court, 88 Cal. 413; 26 Pac. 351. Upon proceed- ings supplementary to execution, it is proper to order an execution debtor to make an assignment, to a receiver, of his patent right to an invention. Pacific Bank V. Robinson, 57 Cal. 520; 40 Am. Rep. 120. Seats in stock and produce ex- changes constitute property within the reach of judgment creditors of the owner, and an order may be properly made, upon proceedings supplementary to execution against an owner of such seats, appointing a receiver, directing the execution debtor to make an assignment thereof to him to sell the same to satisfy the judgment. Habenicht v. Lissak, 78 Cal. 351; 12 Am. St. Rep. 63; 5 L. R. A. 713; 20 Pac. 874. •While Federal courts have jurisdiction of questions arising as to the title to letters patent of the United States, yet, as they are not exempt from seizure and sale by the laws of the state, a court of equity can compel a defendant to assign them to a receiver, to be sold and applied to the satisfaction of judgments against him. Pacific Bank v. Robinson, 57 Cal. 520; 40 Am. Rep. 120. Receivers of corporations. Under the code, the rule is, not to appoint a receiver to administer the assets of a defunct cor- poration, but to leave the whole matter of liquidation and distribution to the exclu- sive control of the directors at the date of dissolution, unless, upon the showing of some party interested, either a creditor or a stockholder, it is necessary, for the pro- tection of his rights, that a receiver, under the control and superintendence of a court of equity, be appointed. Havemeyer v. Sui)erior' Court, 84 Cal. 327; 18 Am. St. Rep. 192; 10 L. R. A. 627; 24 Pac. 121. The court has no jurisdiction to appoint a receiver for a corporation, organized for mutual protection, and for the payment of 8ti])ulated sums to members, and not for profit, on the alleged ground that its lia- bilities exceed its assets, that nearly half of its assets arc due on policies to deceased members, and that salaries and expenses are wasting the assets, where there is no fraud or mismanagement, and the corpora- tion was not dissolved nor adjuending the litigation, subject to the further order of the court. Cook v. Terry, 19 Cal. App. 765; 127 Pac. 816. The ap- pointment of a receiver does not operate as a sequestration of the property men- tioned in the order of appointment, where the com]dainant, at M'hose instance the re- ceiver was appointed, had some estate in, or some right to, or some lien upon, the property involved, prior to and indepen- dently of the a])pointment of the receiver, and the receiver is then appointed to i)re- serve and enforce his pre-existing right. Bank of Woodland v. Heron, 120 Cal. 614; 52 Pac. 1006. Where the court, by its order, takes property out of the actual possession of a stranger to the proceeding, who claims it as his own, the order is in excess of jurisdiction and void, irrespec- tive of the actual state of the title, because no man can be deprived of his property without due process of law; nor can a court take property from his possession without a hearing, and compel him to prove title to regain it. Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Rep. 192; 10 L. R. A. 627; 24 Pac. 121. Damages for attorneys' fees for a dissolu- tion of the order appointing a receiver cannot be allowed, where such fees have not been paid. Cook v. Terry, 19 Cal. App. 765; 127 Pac. 816. Discharge of receiver. Where a re- ceiver was appointed for. a purpose ancil- lary to the main object of the action, and final judgment was rendered in favor of the defendant, from which an appeal was taken, the court has jurisdiction to dis- charge the receiver (Baughman v. Superior Court, 72 Cal. 572; 14 Pac. 207); and the court has power to vacate the appoint- ment of a receiver, improvidently made, notwithstanding a motion for a new trial is pending, and admitting that the effect of the motion is to stay the proceedings generally. Copper Hill Mining Co. v. Spen- cer, 25 Cal. 11. Remedies for erroneous appointment. Since the amendment in 1897 of § 939, post, allowing an appeal from an order appointing a receiver, and the amend- ment, at the same time, of § 943, post, providing for the staying of the order by an undertaking on appeal, a writ of pro- hibition will not lie to arrest proceedings under such an order, as the aggrieved party has a plain, speedy, and adequate remedy at law, within the meaning of § 1103, i>ost, notwithstanding a question of jurisdiction is involved in the applica- tion for the writ. .Jacobs v. Superior Court, 133 Cal. 364; 85 Am. St. Rep. 204; 65 Pac. 826. Although a party could, be- fore that amendment, move the court to §564 RECEIVERS. 590 set aside an invalid order appointing a re- ceiver, yet this was not a ground for re- fusing an application for a writ of prohibi- tion: the most that could be claimed was, that the application should have been made to the lower court before moving for the writ. Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 627; 24 Pac. 121; and see Jacobs V. Superior Court, 133 Cal. 364; 85 Am. St. Rep. 204; 65 Pac. 826. Where judgment was had against a corporation, and execution was levied upon moneys and personal property held by a receiver of the corporation, illegally appointed, pro- hibition was the proper remedy to restrain the court from withholding such assets from the creditor (Murray v. Superior Court, 129 Cal. 628; 62 Pac. 191); and prohibition was the proper remedy to pre- vent the attempted receivership of the property of a corporation, during the pen- dency of an action to displace the man- agement of the corporation by its directors (Fischer v. Superior Court, 110 Cal. 129; 42 Pac. 561) ; and also where no sufficient ground for the appointment of a receiver exists (Murray v. Superior Court, 129 Cal. 628; 62 Pac. 191); and also where the court appointed a receiver and commanded a court of concurrent jurisdiction, which had first assumed jurisdiction in the mat- ter, and appointed a receiver, to desist from proceeding further (Fischer v. Su- perior Court, 110 Cal. 129; 42 Pac. 561); and also where the court, through its re- ceiver, was doing an injury to the peti- tioners, in possession of the property under claim of ownership. Havemeyer v. Su- perior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. R. A. 627; 24 Pac. 121; Bishop v. Superior Court, 87 Cal. 226; 25 Pac. 435; Cosby V. Superior Court, 110 Cal. 45; 42 Pac. 460; Fischer v. Superior Court, 110 Cal. 129; 42 Pac. 561; Jacobs v. Superior Court, 133 Cal. 364; 85 Am. St. Eep. 204; 65 Pac. 826. If the order appointing the receiver is only collaterally involved, it cannot be assailed, except for want of jurisdiction. Title Insurance Co. v. Grider, 152 Cal. 746; 94 Pac. 601. As against a collateral attack upon an order appointing a receiver, the jurisdiction of the court will be upheld and its action validated, if this can be done, even though the facts showing such jurisdiction are defectively stated and inferences must be indulged in to support the judgment. Illinois Trust etc. Bank v. Pacific Ey. Co., 115 Cal. 285; 47 Pac. GO. A mere averment that the value of property mortgaged is insuffi- cient, or that the premises are insufficient, may be sufficient to uphold an order ap- pointing a receiver where the attack is collateral, but not where there is a direct attack upon appeal. Bank of Woodland v. Stephens, 144 Cal. 659; 79 Pac. 379. Where a party, on petition, obtained an order to show cause why a writ of review of pro- ceedings for the appointment of a receiver should not issue, and it does not appear whether the order was made with or with- out notice, or that the court was not justified in directing the taking and hold- ing of the property until adjudication could be had, such writ operates only as to excess of jurisdiction, as the complaint for the appointment of a receiver may have showed a case in which an appoint- ment was proper. Eeal Estate Associates v. Superior Court, 60 Cal. 223. Where the court has general jurisdiction to ap- point a receiver, error in the exercise of that jurisdiction is reviewable only on appeal, and not by certiorari. Loaiza v. Superior Court, 85 Cal. 11; 20 Am. St. Eep. 197; 9 L. E. A. 376; 24 Pac. 707; White V. Superior Court, 110 Cal. 60; 42 Pac. 480. Where the court has jurisdiction of the subject-matter and of the parties, it has power to hear and determine a motion for the appointment of a receiver, and its action thereon cannot be regarded as in excess of its jurisdiction; and if error is committed, the petitioner has a plain, speedy, and adequate remedy in due course of law, and the writ of prohibition cannot issue (Woodward v. Superior Court, 95 Cal. 272; 30 Pac. 535; and see Jacobs v. Superior Court, 133 Cal. 364; 85 Am. St. Eep. 204; 65 Pac. 826); nor can the title to property be tried upon a writ of prohibi- tion. Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 627; 24 Pac. 121. Appointment of receiver to collect rents of mortgaged property. See note 27 Am. St. Kep. 793. When and over what property receiver will be appointed. See note 64 Am. Dec. 482. When proper to appoint receiver. See note 72 Am. St. Rep. 29. Equitable right to appointment of receiver in action maintained solely for such relief. See note 4 Ann. Cas. 66. Sufficiency of affidavit for appointment of re- ceiver sworn to upon information and belief. See note 11 Ann. Cas. 980. Affidavit or verified bill as essential to appoint- ment of receiver. See note Ann. Cas. 19 13 A, 608. Right to appointment of receiver before suit is instituted. See note Ann. Cas. 1912B, 236. Power of court to appoint receiver in absence of statute. See note Ann. Cas. 1913B, 648. Appointment of receivers for corporation. See note 118 Am. St. Rep. 198. Misconduct of officers or directors of corpora- tion as ground for appointment of receiver. See note 17 Ann. Cas. 916. Who is "creditor" entitled to apply for ap- pointment of receiver for insolvent corporation. See note Ann. Cas. 1912.4, 901. Power to appoint receivers of corporations when no other relief is asked. See note 20 L. i;. A. 210. Inherent jurisdiction of equity independent of statute, at the instance of stockholders, to ap- point a receiver because of mismanagement or fraud of corporate officers. See note 39 L. R. A. (N. S.) 1032. Exhausting remedies at law as a condition of judgment creditor's right to receivership. See note 33 L. R. A. .■■>46. Right to have receiver appointed to take charge of claims not legally or equitably enforceable. Sec note 5 L. R. A. (N. S.) 771. 591 APPOINTMENT OP, UPON DISSOLUTION OF CORPORATION. § 565 When notice of application for appointment of receiver of growing crop may be dispensed with. Seo note 11 L. H. A. (N. S.) 9G(>. Jurisdiction of equity to appoint receiver of real property in another state. See note 69 L. K. A. 6'J3. Jurisdiction of equity to appoint receiver to preserve status quo pending action or proceed- ings before other tribunal. See uoto 38 L. K. A. (i\. S.) 228. CODE COMMISSIONERS' NOTE. 1. Receiver, appointment of. I'lie county judgo cannot (as a thinfj distinct from the injunction) appoint a re- ceiver in an action pending in tlie district court. Ruthrauff v. Kresz, 13 Cal. G39. The general rule is, that a receiver should not be appointed without notice to tlie adverse party. People v. Norton, 1 Paige, 17; Field v. Kiploy, 20 How. Pr. 26; Kemp v. Harding, 4 How. Pr. 178; Dorr V. No-xon, 5 How. Pr. 29. Except in special cases, where irreparable injury, or the like, will be sus- tained by the delay. West v. Swan, 3 Edw. Ch. 420. The merits are not inquired into, upon tlie motion to apnoint a receiver. Sheldon v. Weeks, 2 Barb. 532; Conro v. Gray, 4 How. Pr. 166; Higgins V. Bailey, 7 Rob. 613. The application relates only to the preservation of the property. Sheldon v. Weeks, 2 Barb. 532; Chapman v. Ham- mersly, 4 Wend. 173. The appointment rests in the sound discretion of the court. Copper Hill M. Co. V. Spencer, 25 Cal. 15. A third party cannot take advantage of an irregularity in the appointment. Tyler v. Whitney, 12 Abb. Pr. 465; Tyler v. Willis, 33 Barb. 327. The court may revoke the order appointin|> a receiver, at any time before the appointment is consummated, and appoint another person. Siney v. New York Con. Stage Co., 28 How. Pr. 481; 18 Abb. Pr. 435. 2. Subd. 1. The purchaser at judicial sale of a mining claim may, where the judgment debtor remains in possession, working the claim, and is insolvent, have a receiver appointed lo take charge of the proceeds, pending the time for redemption. Hill V. Taylor, 22 Cal. 191. A crop of grain is part of the land, and if a plaintiff is entitled to recover the land from the possession of another, he is also (the proper showing being made) en- titled to a receiver to harvest and preserve the crop. Corcoran v. Doll, 35 Cal. 476. 3. Subd. 2. See Guy v. Ide, 6 Cal. 101; 65 Am. Dec. 490; Hill v. Taylor, 22 Cal. 191. As a general rule, the mortgagee in possession will not be deprived of the possession by the appoint- ment of a receiver. Bolles v. Duff, 35 How. Pr. 481. Caution must be used in appointing a re- ceiver in mortgage cases. Shotwell v. Smith, 3 Edw. Ch. 588; Bank of Ogdensburg v. Arnold, 5 Paige, 38; Warner v. Gouverneur's Executors, 1 Barb. 36. If the mortgagee in a chattel mort- gage has possession, a receiver will only be ap- pointed in case of pressing necessity. Bolles v. Duff, 35 How. Pr. 481; Patten v. Accessory Transit Co.. 4 Abb. Pr. 235. See also Thompson V. Van Vechten, 5 Duer, 618, and Bayaud v. Fel- lows, 28 Barb. 451. 4. Subd. 3. May be appointed in proceedings § 565. Appointment of receivers upon dissolution of corporations. Upon the dissolution of any corporation, the superior court of the county in which the corporation carries on its business or has its principal place of business, on application of any creditor of the corporation, or of any stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other prop- erty that shall remain over among the stockholders or members. supplementary to execution. Hathaway v. Brady, 26 Cal. 586. After judgment, in an action to re- cover possession of real estate, and while a mo- tion for a new trial is pending, a receiver of the rents and proceeds of the property in dispute may be appointed, if the facts of ihe ca:-e are such as warrant it. Whitney v. iSuckman, 26 Cal. 447. i). Subd. 4. See Hathaway v. Brady, 26 Cal. .5 ■ 't. 6. Subd. 5. See § 565 of this code. Tn NeaU v. Hill, 16 Cal. 148, 76 Am. Dec. 508, it was held that a court of equity has no jurisdiction over corporations for the purpose of restraining their operations or winding up their concerns; thai while it might compel the ofticers of the corprjra- tion to account for any breach of trust, the juris diction for this purpose was over the ofticers personally, and not over the corporation ; hence it was error in the court below to appoint a receiver and decree a sale of the property and a settle- ment of the affairs of the corporation. 7. Subd. -6. Courts of equity liave the author- ity to appoint receivers, and may order them to take possession of the property in controversy, whether in the immediate possession of the de- fendant or his agents; and in proper cases they can also order the defendant's agents or em- ployees, although not parties to the record, to de- liver the specific properly to the receiver. Ex parte Cohen, 5 Cal. 494. Where the allegations of a bill are general in their nature, and the equities are fully denied by the answer, such a case is not presented as will authorize the appointment of a receiver, the withdrawal of the property from the hands of one acquainted with all the affairs of the concern, and placing it in the hands of an- other, who may not be equally competent to man- age the business. Williamson v. Monroe, 3 Cal. 385. 8. Generally. Where it appears that the part- ners, parties to the suit for a dissolution, held a judgment against a third party, which was never reduced to the possession nor under the control of the receiver, it was held, that the appointment of the receiver did not operate as an assignment, nor transfer any property not so reduced to pos- session witliin a reasonable time. Money in the hands of a receiver is in custodia legis. Ad.inis V. Woods, 8 Cal. 306. The transfer to a receiver, by order of court, of the effects of an insolvent, in the suit of a judgment creditor, is not an as- signment absolutely void -ander the Insolvent Act of 1852, but is only void against the claim of creditors. Naglee v. Lyman, 14 Cal. 450. The pendency of a motion for a new trial does not operate as a stay of proceedings, so as to deprive the court of the right to vacate an order appoint- ing a receiver, made before the trial. But where a receiver has been appointed, and, on the trial, judgment of nonsuit is rendered against the party at whose instance the receiver was appointed, a motion for a new trial suspends the operation of the judgment so as to prevent it from operating as a discharge of the action, unless an order is made discharging the receiver. Copper Hill M. Co. V. Spencer, 25 Cal. 15. Dissolution. 1. Involuntary. Civ. Code, §§ 399,400; post, §§ 802 et seq. 2. Voluntary. Post, §§ 1227 et seq. Xegislation § 565. 1. Enacted March 11, 1873; based on Stats. 1850, p. 347, §§ 16, 18, and Stats. 1862, p. 199, !§ 25. 3. Amended by Code Amdts. 18SO. p. 4, changing tlie word "district" to "superior," be- fore "court of the county." §566 RECEIVERS. 592 Who may have receiver appointed. A receiver of a dissolved corporation may be appointed, only when necessary for the purpose of preserving and distributing the property, and only upon the application of a party in interest, namely, a creditor or a stockholder (Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Rep. 192; 10 L. E. A. 627; 24 Pac. 121); and can neither be invoked at the instance of a stranger, nor assumed by the court of its own motion. State Investment etc. Co. v. Superior Court. 101 Cal. 135; 35 Pac. 549. Where the affairs of a defunct corpora- tion are under the control of its late di- rectors as trustees for its creditors and stockholders, the creditors have nothing to do but present their demands and receive payment in the ordinary course of busi- ness, or, if payment is refused or delayed, they may proceed to enforce their de- mands; and it is always at the option of the creditors or stockholders to have a receiver, if they can allege facts showing that one is necessary. Havemeyer v. Su- perior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 62j ; 24 Pac. 121. CODE COMMISSIONERS' NOTE. Stats. 1850, p. 347, §§16, 18; Stats. 1862, p. 199, §23. Scope of section. This section does not authorize the appointment of a receiver upon the ground that the corporation is not prosperous, or because its liabilities are greater than its assets, but only upon the dissolution of the corporation (Murray v. Superior Court, 129 Cal. 628; 62 Pac. 191); nor has the court power, under this section, to appoint a receiver, from the fact that a fine was imposed upon the cor- poration, payable to the people of the state, making the state a creditor of the corporation (Yore v. Superior Court, 108 Cal. 431; 41 Pac. 477); nor does this sec- tion confer upon the court any authority to take charge of the management of the affairs of a corporation, in an action by the state against a corj^oration for its dis- solution, or to assume the disposition of the effects of the corporation, winding up its affairs; nor has the court authority to appoint a receiver pendente lite: upon the entry of a judgment of dissolution, the functions of the court are at an end. State Investment etc. Co. v. Superior Court, 101 Cal. 135; 35 Pac. 549. Effect of dissolution. The dissolution of a corporation leads practically to a wind- ing up of its business. People v. Superior Court, 100 Cal. 105; 34 Pac. 492. § 566. Receiver, restrictions on appointment. Ex parte application, undertaking on. No party, or attorney of a party, or person interested in an action, or related to any judge of the court by consanguinity or affinity within the third degree, can be appointed receiver therein vrithout the v^rit- ten consent of the parties, filed v>nth the clerk. If a receiver is appointed upon an ex parte application, the court, before making the order, must re- quire from the applicant an undertaking, Avith sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause ; and the court may, in its discretion, at any time after said appointment, require an additional undertaking. of a receiver upon an ex parte applica- tion (Eeal Estate Associates v. Superior Court, 60 Cal. 223); and an undertaking is required of the applicant, only when the appointment is asked for ex parte (E'meric v. Alvarado, 64 Cal. 529; 2 Pac. 418); and the appointment is void, where the court has failed to require the undertaking from the applicant before making the order. Davila V. Heath, 13 Cal. App. 370; 109 Pac. 893; Bibby v. Dieter, 15 Cal. App. 45; 113 Pac. 874. The undertaking required under this section, where the application is made ex parte, must run in favor of each defendant in the action, and be in such form that any defendant shall have a right of action thereon if he is injured by the appointment; and on appeal, it will be presumed that persons purporting to act as the agents of a surety company^ Legislation § 566. 1. Enacted March 11, 1873, and then contained only two lines, "No party or attorney, or person interested in an action, can be appointed receiver therein." 3. Amended by Code Amdts. 1873-74, p. 309, adding the rest of the section after the words receiver therein," except for the changes noted infra. 3. Amended by Stats. 1897. p. 60, adding the words 'or related to any judge of the court by consanguinity or affinity within the third de- gree, in the first sentence. 4. Amendment by Stats. 1901, p 142- un- constitutional. Sec note a!ite, § 5. ' 5. Amended by Stats. 1907, p. 710, (1) add- ing the words "of a party," in the first line (2) changing the word "be" to "is," after "If a receiver," and (3) changing the word "may" to "must," before "require" ; the code cnmraissioner saying of the first and third changes, "Such changes having been made to conform to [sic] the Kortion to the intent of the legislature in the passag'- of the original hertion." Ex parte application. Undertaking. This section recognizes the appointment 593 OATH AND UNDERTAKING POWERS. §§567,568 in the execution of such undertalunff, sufli- CODE COMMISSIONERS' NOTE. A person ciently established their authority by evi- '^''[^"'d ""t l^e app'/inipd reciver, who, by his own , •' i 1 i ii i • 1 i. rn-ii '"^'' Stands HI ail iniproptT relation to the actimi. deuce presented to the trial court, title .smith v. New York Con. stage Co.. 2a How. Pr. Insurance etc. Co. v. California Develop- 208; 18 Abb. Pr. 419. meut Co., 1G4 Cal. 58; 127 Pac. 502. § 567. Oath and undertaking of receiver. Before entering upon his duties, the receiver must be SAVorn to perform them faithfully, and witli two or more sureties, approved by the court or judge, execute an undertaking to the state of California, in such sum as the court or judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court therein. sppcting sureties, and the undertaking with re- ppert to form is left subject to the control of § 982 of the Political Code."' Liability of sureties. The sureties of a receiver merely undertake that he will faithfully execute the orders of the court; and if the receiver obeys such orders, the sureties are exonerated. Ilavemeyer v. Superior Court, 8i Cal. 327; 18 Am. St. Eep. 192; 10 L. K. A. 627; 24 Pac. 121. Undertakings, generally. See post, §941; Pol. Code, §§981, 947-98<;, 982. Legislation § 567. 1. Enacted March 11, 1872, and tlicn liad (1) thi' word "one" instead of "two," before "or more sureties," and (2) the words "such person, and" instead of "the state of California." 3. Amendment by Stats. 1901, p. 142; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1907. p. 710; the code commissioner saying, "The word [one' is changed to 'two,' thus requiring two sureties, and making it uniform with other provisions of this code re- § 568. Powers of receivers. The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize. Legislation § 568. Enacted March 11, 1873. dated Piedmont Cable Co., 117 Cal. 237r Scope of section. It was not intended by § 564, ante, to create a new lien by the mere appointment of a receiver in an ac- tion to foreclose a mortgage. Locke v. Klunker, 123 Cal. 231; 55 Pac. 993. Power of receiver. A receiver appointed to keep, and care for, and dispose of prop- erty until the appointment of an assignee, has no further powers, save that he may sue and be sued in his own name, collect debts, and do such other acts respecting the property as the court may direct; but he is not authorized to bring suits not con- nected with his receivership, and necessary for him to perform its functions, nor to sue in his own name for property which has not come into his possession. Tibbets V. Cohn, 116 Cal. 365; 48 Pac. 372. A receiver can, with the permission of the court, do anything the court may do to make the most out of the assets in his hands; thus, he may settle disputed claims, compromise with debtors, lease and oper- ate other property, and complete unfin- ished work. Pacific Ev. Co. v. Wade, 91 Cal. 449; 25 Am. St. Rep. 201; 13 L. R. A. 754; 27 Pac. 768. A receiver, appointed only to take possession of a mortgaged street-railway, and operate the same, has no authority to collect debts due to the defendant before his appointment, and mingle the funds thus received with those received in the course of his receivership. California Title Ins. etc. Co. v. Consoli- 1 Fair.— 38 49 Pac. 1. The receiver of a mortgaged field has no right to cut timber from other land of the mortgagor, in order to build fences or houses on the tract covered by the mortgage, although it might benefit the mortgagor. Staples v. May, 87 Cal. 178; 25 Pac. 346. The receiver of an insolvent corporation is not bound to perform any of the contracts of the company, unless it is to the interest of creditors, or unless required by order of court; but delivery of water for irrigation under a contract of the company, is proper, where the re- ceiver is the only person who can do so (Russ Lumber etc. Co. v. Muscupiabe etc. Water Co., 120 Cal. 521; 65 Am. St. Rep. 186; 52 Pac. 995); and the receiver may carry out to completion a special contract, necessary in the dissolution of a partner- ship, when in the interests of and with the consent of the partners. Roehat v. Gee, 137 Cal. 497; 70 Pac. 478. A receiver, ap- pointed in a foreclosure suit against a deceased mortgagor, is not a pulilic officer, charged with a trust as such officer, and he may act as agent for the sale of the note and mortgage, and make a valid contract, where the jiurchasers are not misled and the creditors of the deceased mortgagor do not comjilain. De Jarnatt v. Peake, 123 Cal. 607; 56 Pac. 467. Order appointing receiver. The mcro appointment of a receiver is not a deter- mination of what the court shall order him. §568 RECEIVEES. 594 to do; and to compel a person to make certain payments to the receiver is as much in the discretion of the court as the appointment of the receiver. Bank of Woodland v. Heron, 120 Cal. 614; 52 Pac. 1006. The appointment of a receiver is merely ancillary, where he is appointed before judgment to protect, pending liti- gation, the property in litigation, and in this case neither his functions nor the power of the court to remove or control him are suspended by an appeal; but the appointment of a receiver is not ancillary, where he is appointed after judgment to carry it into effect, as in the case of his appointment to sell mortgaged premises under a decree of foreclosure, when his proceedings are suspended by an appeal. Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 627; 24 Pac. 121. The appointment is classed in our statutes as a provisional remedy, and is sometimes styled an equitable execution before judgment; and where the appoint- ment is made after judgment, the func- tions of the receiver, either for the purpose of carrying the judgment into effect or for its preservation until execution thereof, are limited to the property described in the judgment. Kreling v. Kreling, 118 Cal. 421; 50 Pac. 549. Usually, a court will not appoint a receiver to carry on a busi- ness permanently; but it is not unusual or erroneous to authorize him to do so tem- porarily, where the interests of the par- ties require it. Eochat v. Gee, 137 Cal. 497; 70 Pac. 478. Where a receiver was appointed to take possession of and to operate a street-railway, the court may enter orders authorizing and directing the issuance of receiver's certificates, and pro- viding that such certificates shall be a first lieu upon the property in the hands of the receiver. Illinois Trust etc. Bank v. Pacific Ey. Co., 115 Cal. 285; 47 Pac. 60. A direction, in a judgment, that, after the confirmation of a sale, the receiver shall execute a deed, will not be assumed to im- port that he shall execute it before he is authorized by law so to do, and such direc- tion is not available to a judgment debtor, on appeal, for the purpose of impairing the sufl[iciency of the judgment directing the sale. Woodbury v. Nevada Southern Ey. Co., 120 Cal. 463; 52 Pac. 730. As against a collateral attack upon an order appointing a receiver, if the jurisdiction of the court can be upheld and its action valiilated, this will be done, even though the facts showing such jurisdiction are de- fectively stated and inferences must be indulged in to support the judgment. Illi- nois Trust etc. Bank v. Pacific Ey. Co., 115 Cal. 285; 47 Pac. 60. Where a judgment directed the defendant to satisfy a claim within a specified time, and, in default thereof, that certain real estate should be sold and the 2'roceeds ai)plied on the judgment, and in case of a deficiency, that judgment should be docketed there- for against the defendant, the court has no jurisdiction to appoint a receiver to take charge of any other property than that described in the judgment. Kreling v. Kreling, 118 Cal. 421; 50 Pac. 549. An action against a corporation upon a note is an action at law, and the appointment of a receiver in such a case is unauthor- ized and void, although the corporation assents to the appointment, and the com- plaint alleges that it is insolvent and that other creditors are threatening to sue it, that it has no property to respond to the judgment, and that the action is brought in behalf of the plaintiff and other credi- tors. Smith V. Superior Court, 97 Cal. 348; 32 Pac. 322; and see Grant v. Los Angeles etc. Ey. Co., 116 Cal. 71; 47 Pac. 872. Suits by receivers. This section clears the way of all former niceties as to the questions whether a receiver could sue in his own name, and whether he could re- cover property which had not once been in his actual possession; and in Eeal Es- tate Associates v. Superior Court, 60 Cal. 223, the power of a receiver to maintain necessary actions in insolvent cases is ex- pjressly recognized. Dennery v. Superior Court, 84 Cal. 7; 24 Pac. 147. A receiver in insolvency proceedings may maintain all actions necessary to preserve any prop- erty which comes into his possession (Tib- bets V. Cohn, 116 Cal. 365; 48 Pac. 372); and he is expressly authorized, or directed, to sue for the recovery of goods fraudu- lently transferred by the insolvent, after demand and refusal (Tapscott v. Lyon, 103 Cal. 297; 37 Pac. 225); and he may bring an action for the conversion of prop- erty during his receivership, and must al- lege therein that his insolvent was the owner or entitled to the possession of the property, and that there has been a de- mand and refusal. Daggett v. Gray, 5 Cal. Unrep. 74; 40 Pac. 959. A receiver can- not sue to recover property which has not come into his possession, or which should have been delivered to him; he cannot maintain trover for property of the insol- vent converted before the adjudication, or to recover property transferred b}' the debtor in fraud of his creditors (Tibbets V. Cohn, 116 Cal. 365; 48 Pac. 372); nor can he maintain an action of replevin, in an action of foreclosure, to recover the possession of personal property, not taken from his possession, but held by the sheriff under a writ of attachment, and in the possession of the receiver merely as a care- taker for the sheriff. Bishop v. McKilli- can, 124 Cal. 321; 71 Am. St. Eep. 68; 57 Pac. 76. An action brought by a receiver to set aside judgments obtained by fraud is proper; but he should resort to the usual means of an injunction, and give other security to indemnify creditors if they 595 SUITS BY AND AGAINST RECEIVERS. 568 should ultimately establish the validity of their claims. Petaluma Sav. Bank v. Su- perior Court, 111 Cal. 48S; 44 Pac. 177. A receiver, appointed in a foreclosure suit, is not a public officer, charged with a trust as such officer; and where he acts as an agent for the sale of the mortgaged prem- ises, and a check is given by the pur- chasers in payment of the purchase price, le may maintain an action against the makers upon stoppage of payment. De Jar- natt v. Peake, 123 Cal. ti07; 56 Pac. 4(J7. A foreign receiver cannot sue in another state; but, on the ground of comity, courts will, where the good of a large number demands it, permit such suits to be main- tained, and recognize orders and judg- ments of courts of sister states; but such right to sue is not conceded, nor a suit permitted to be maintained by a foreign receiver, where the claim conflicts with the rights of citizens or creditors in the state where suit is brought. Humphreys v. Hopkins, 81 Cal. 551; 15 Am. St. Rep. 76; •6 L. R. A. 792; 22 Pac. 892; Ward v. Pa- cific Mut. Life Ins. Co., 135 Cal. 235; 67 Pac. 124; and see Lackmann v. Supreme Council, 142 Cal. 22; 75 Pac. 583. A re- ceiver appointed in another state, presuma- bly wdthout the assent of other creditors in this state, who are not parties to the action, cannot represent such creditors in a suit between the receiver and a domestic attaching creditor. Lackmann v. Supreme Council, 142 Cal. 22; 75 Pac. 583. An ac- tion by a foreign receiver cannot be main- tained here against a domestic creditor claiming the same fund, situated here, of -an insolvent foreign corporation, sought to be appropriated by the receiver of such corporation. Ward v. Pacific Mut. Life Ins. Co., 135 Cal. 235; 67 Pac. 124. Xo rule of state comity or law requires the rights of a domestic attaching creditor to be set aside in deference to a foreign re- ceiver claiming under the laws of another state. Lackmann v. Supreme Council, 142 Cal. 22; 75 Pac. 583. Suits against receivers. Courts of equity will not permit their receivers to be sued, or property in their possession to be seized or sold, without leave asked and granted; but, since the refusal of leave to sue in other tribunals, or to enforce the judg- ments of other courts, would, in many cases, destroy or impair rights which the court appointing the receiver has no power to conserve, it is the boast of such courts that they never refuse leave in a proper case. Petaluma Sav. Bank v. Superior Court, 111 Cal. 488; 44 Pac. 177. It is -contrary to the established doctrine of -courts of equity to permit a receiver to be made a party defendant, unless by con- sent of court: this is for the protection ■of receivers against unnecessary litigation, •because relief can be obtained on motion Jio the court making the appointment; but such action may be justified, where the rights of the parties or of the receiver will not be injuriously affected by the decree, and wliere the decree specially re- serves all rights of the receiver. Murray V. Etchepare, 132 Cal. 286; 64 Pac. 282. A suit, by permission, can always be brought against a receiver, to present claims against him in his official capacity, on such terms as will jirotect him, while affording full opportunity to the plaintiff to test his right. Tapscott v. Lyon, 103 Cal. 297; 37 Pac. 225. Whether the court will permit, upon application, an inde- pendent suit to be brought relative to the property in the hands of a receiver, or will compel intervention in the proceed- ing in which the receiver is appointed, is a matter for its discretion; and when it cannot afford the same relief in interven- tion as the claimant would be entitled to in an independent action, it should permit an independent suit. De Forrest v. Coffey, 154 Cal. 444; 98 Pac. 27. A superior court, having jurisdiction of an action in which a receiver of an insolvent corporation is appointed, does not abuse its discretion in denying leave to sue him in an inde- pendent action. De Forrest v. Coffey, 154 Cal. 444; 98 Pac. 27; Auzerais v. Coffey, 155 Cal. 102; 99 Pac. 1134. The claimant of real projierty, under title adverse to that of parties represented by a receiver in an action to foreclose a mortgage, should be granted leave, on application, to commence an action of ejectment, in order to try the question of title. Petaluma Sav. Bank v. Superior Court, 111 Cal. 488; 44 Pac. 177. A mortgagee should not be re- quired to satisfy the court, in appointing a receiver, of the validity of his mort- gage, or in other words, to litigate the whole question of the mortgagor's lia- bility, and to establish it, on the motion, as a condition precedent to any permis- sion to sue the receiver in the county where the land is situate; for, whenever the court appointing a receiver cannot pro- tect an asserted right in a cause before it, the party will be allowed to proceed in the proper forum to establish his right if he can, and to enforce it by appropriate means. Petaluma Sav. Bank v. Superior Court, 111 Cal. 488; 44 Pac. 177. A judg- ment against a receiver, final because of failure to appeal therefrom or to move for a new trial, cannot be enforced by execu- tion: it is against the receiver in his offi- cial capacity, and operates only as an established claim against the assets in his possession; its enforcement is a matter for the determination of the court having ju- risdiction of the receivership, and to it application must be made for its pavment. Painter v. Painter, 138 Cal. 231; 94 Am. St. Rep. 47; 71 Pac. 90. The rights of creditors are statutory, and cannot be di- vested by the mere volition of the court §568 RECEIVERS. 596 or judge in refusing leave to sue a re- ceiver; but creditors have the right to take such proceedings as the law exacts for preserving or enforcing their liens accord- ing to their priority. Petaluma Sav. Bank V. Superior Court, 111 Cal. 488; 44 Pac. 177. A receiver lawfully in possession of property by direction of the court, and claimed' to belong to the insolvent, cannot be held personally responsible as a tres- passer, by adverse claimants, upon demand and refusal to give up the property. Tap- scott V. Lyon, 103 Cal. 297; 37 Pac. 225. Where a receiver, holding by a valid ap- pointment, containing no direction in ex- cess of the jurisdiction of the court, attempts to take property lawfully in the possession of another, and to which he is not entitled, he may be resisted, just as any other trespasser may be resisted, and a person defending his lawful possession is not thereby brought in conflict with the court, as the fault is that of the re- ceiver alone; and if he gains possession of property clairned by a stranger, the court will either order him to restore it, or permit an action to be brought against him to try the title. Havemeyer v. Su- perior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 627; 24 Pac. 121. A re- ceiver, being the legal custodian of all the books of a corporation defendant, may be made a party defendant to an application for an order to compel the entry of stock, in the transferee's name, upon the books of the defendant corporation, and may be commanded to make the proper entry of the transfer of the stock upon such books. People V. California Safe Deposit etc. Co., 18 Cal. App. 732; 124 Pac. 558. Receipt of rents. Where a receiver col- lects and preserves rents, there is no neces- sit}' for a specific decree declaring such funds to be the property of the party finally recovering possession of the lands. Garniss v. Superior Court, 88 Cal. 413; 26 Pac. 351. The title of the defendant to the rents and profits of land under fore- closure of mortgage is in no way affected by the possession of the receiver. Garret- son Investment Co. v. Arnot, 144 Cal. 64; 77 Pac. 770. Compromise claims and payment of debts. Ordinarily, a receiver should not pay debts without a previous direction of the court; but the general rule is not in- exorable, and, where the order of appoint- ment is not broad enough, in a proper case such action of the receiver may be subse- quently sanctioned by the court. Eochat V. Gee, 137 Cal. 497; 70 Pac. 478. Possession and care of property by re- ceiver. The possession of property by a receiver, pendente lite, does not affect the title to the property (Tibbets v. Cohn, 116 Cal. 365; 48 Pac. 372); nor does a mort- gagee acquire any new or additional lien through the jtossession of the receiver. Bank of Woodland v. Heron, 120 Cal. 614; 52 Pac. 1006. The piroperty of a corpora- tion in the hands of a receiver is in cus- todia legis: the possession of the receiver is the possession of the court, for the bene- fit of all parties interested (De Forrest v. Coffey, 154 Cal. 444; 98 Pac. 27); and no one claiming a right paramount to that of the receiver can assert it in any action without the permission of the court; no sale can take pjlace, no debt can be paid, no contract can be made, without its sanc- tion. Pacific Ey. Co. v. W'ade, 91 Cal. 449; 25 Am. St. Eep. 201; 13 L. E. A. 754; 27 Pac. 768. W'hat the receiver does, the court does; the court, therefore, and not the receiver, holds, administers, and dis- poses of the property in the hands of the receiver; and, as long as it is undisposed of, action by the court is necessary. Have- meyer v. Superior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 627; 24 Pac. 121. The receiver is the oflSeer or repre- sentative of the court, appointed to take charge and management of the property which is the subject of litigation before it, for the purpose of its preservation and ultimate disposition according to final judgment therein; and as, in any particu- lar action, the court has jurisdiction over only the property which is the subject of that litigation, that is the only property which it can authorize its receiver to in- terfere with or take into its possession. Kreling v. Kreling, 118 Cal. 421; 50 Pac. 549. Where the goods are described, and are in the possession of the person whose property the receiver is directed to take into possession, or are voluntarily deliv- ered to him by the person having them, he must take them, on penalty of incur- ring contempt, and, having thus taken them, he cannot surrender them to an ad- verse claimant, without leave of the court. Tapscott V. Lyon, 103 Cal. 297; 37 Pac. 225. The receiver is under the control of the court, as is the property of which he is the custodian, and while the court will not permit any interference with such property without its leave, neither will it withhold such property from one who shows that he is entitled to it. De For- rest V. Cotrey, 154 Cal. 444; 98 Pac. 27. Though the receiver is appointed upon the api'lication of one of the parties inter- ested in the property, yet his holding is not merely for the benefit of such party, or of any other party: it is the holding of the court for the equal benefit of those finally ailjudged to have rights in it; and when the rights of the parties are estab- lished, the receiver is considered as hold- ing for the benefit of the parties entitled to the property. Garniss v. Superior Court, 88 Cal. 413; 26 Pac. 351; Pacific Railway Co. V. Wade, 91 Cal. 449; 25 Am. St. Rep. 201; 27 Pac. 768. The holding of property by the receiver differs essentially from the 597 POSSESSION AND CARE OF PROPERTY. §568 holding of property under attachment: in the latter case, the law itself provides that the property shall be disposed of to satisfy the judgment; in the former, there is no such provision, and the property is in the liands of the receiver, to be disposed of by the court after a valid atljudication. Garretson Investment Co. v, Arndt, l-l-t Cal. 64; 77 Pac. 770. Where the receiver is lawfully in possession of property claimed to belong to his insolvent, even an adverse claimant is not justified in disturbing his possession without leave of court; nor is he responsible to such per- son in an action for the value of the prop- erty'; and, having no right to deliver it to the adverse claimant without leave of the court, he cannot be held responsible for not doing so. Tapscott v. Lyon, 103 Cal. 297; 37 Pac. 225. Such discretion as a court has to prevent proceedings by adverse claimants to property in the cus- tody of a receiver appointed by it is a regulated discretion, which cannot be -abused. Petaluma Sav. Bank v. Superior Court, 111 Cal. 488; 44 Pac. 177. Where the order appointing a receiver was made ex parte, and it was not shown that any- thing connected therewith ever came to the knowledge of the corporation defend- ant, and it was insolvent, and seems to have left its creditors to get what they could out of the property, without objec- tion, the presumption is, that it- desired its property to go to its creditors accord- ing to their legal rights. Staples v. May, 87 Cal. 178; 25 Pac. 346. The mere order of the court appointing a receiver does not constitute, ipso facto, a possession of the property, independently of any actual possession of the receiver, or of any at- tempt by him to take possession; and an assignee of the owner of a crop, who took title prior to the taking possession thereof by a receiver appointed ex parte in a suit for the foreclosure of a mortgage, without knowledge of such apjiointment, is entitled to an order directing the receiver to de- liver the crop to him, rather than to the mortgagee plaintiff in the foreclosure suit. Bank of Woodland v. Herron, 120 Cal. 614; 52 Pac. 1006. The receiver cannot, when appointed for any proper purpose, be em- powered to take possession of the crops of a mortgagor and apply them to the mortgage debt, nor, having taken posses- sion, is any lien thereby acquired: this would be to give a lien upon property not included in the mortgage. Locke v, Klunker, 123 Cal. 231; 55 Pac. 993. The receiver is not required to place himself in the position of a wrong-doer, and neeil not take property from third persons, un- less under an express order to that effect: suit should be brought to recover prop- erty in the possession of adverse claim- ants; but where the property is legally and properly in the possession of the re- ceiver, the court should protect that pos- session, not only against acts of violence, but also against suits at law, so that a third person claiming the property may be compelled to come in and ask to be examined pro interesse suo, if he wishes to test the justice of the claim. Tapscott v. Lyon, 103 Cal. 297; 37 Pac. 225. The title of the defendant to the rents and jirofits of land under foreclosure of the mortgage is in no way affected by the pos- session of the receiver, nor can he be di- vested of it otherwise than by a valid adjudication; and where there is neither allegation nor prayer to justify the adju- dication, it is incompetent for the court so to adjudge. Garretson Investment Co. V. Arndt, 144 Cal. 64; 77 Pac. 770. A re- ceiver appointed to take charge of the separate proi)erty of a husband in an ac- tion for divorce, takes the property subject to all prior liens and encumbrances. Peta- luma Sav. Bank v. Superior Court, 111 Cal. 488; 44 Pac. 177. The receiver has no authority to take property from the pos- session of strangers, who claim in good faith as absolute owners in their own right. Havemeyer v. Superior Court, 84 Cal. 327; 18 Am. St. Rep. 192; 10 L. R. A. 627; 24 Pac. 121. Where a judgment debtor has property which cannot be reached by execution, and which he re- fuses to apply to the satisfaction of the judgment, he may be compelled, in pro- ceedings supplementary to execution, to deliver it to a receiver appointed to dis- pose of it in aid of the execution. Pacific Bank v. Robinson, 57 Cal. 520; 40 Am. Rep. 120; Matteson v. Conley, 144 Cal. 483. Patent rights, assignable by the vol- untary act of the owner, and by act and operation of law, can be ordered assigned to the receiver, to be sold and applied to the satisfaction of a judgment. Pacific Bank v. Robinson, 57 Cal. 520; 40 Am. Rep. 120. The court cannot direct a re- ceiver to take charge of any other or ad- ditional property than that described in the judgment (Kreling v. Kreling, 118 Cal. 421; 50 Pac. 549); nor can it confer color of authority upon a receiver to extract ores from lands not covered by the se- curities involved in the suit, although it might enhance the value of such securities (Staples v. May, 87 Cal. 178; 25 Pac. 346); nor has the court jurisdiction, after the entry of a money judgment, to continue the receiver for the purpose of enforcing the judgment, where he had not taken possession of any property before the judgment. White 'v. White,'l30 Cal. 597; 80 Am. St. Rep. 150; 62 Pac. 1062. When the bill upon which the appointment of a receiver was made is dismissed on de- murrer, it is the duty of the court to direct the receiver to restore the prop- erty to the person from whom it was taken. Baughman v. Superior Court, 72 §568 RECEIVERS. 598 Cal. 572; 14 Pac. 207. There is no injus- tice in requiring a receiver to put back into a fund, where it belongs, a sum of money to which he has never had any right. Staples v. May, 87 Cal. 178; 25 Pac. 346. Where, upon false allegations in a pleading, the court appoints a re- ceiver, and, at the trial, judgment is entered for the defendant, an order direct- ing the receiver to turn the property over to the defendant is proper. Loftus v. Fischer, 117 Cal. 128; 48 Pac. 1030. The receiver may apply to the court for in- struction and authority, from time to time, and in the order appointing him he may be directed to apply for instructions when necessary: he is but the hand of the court, to aid in managing and preserving the property, and any order of the court may, if erroneous, be reviewed on appeal, after final judgment has been rendered, or, in exceptional cases, after settlement of the final account of the receiver. Free Gold Mining Co. v. Spiers, 135 Cal. 130; 67 Pac. 61. An order for the direction of the receiver is in the discretion of the court, and requires immediate execution, to be of any avail; but the interests of all parties might be greatly prejudiced if every order of the court in connection with property in its custody was the sub- ject of a direct appeal; any errors in the order should be reviewed upon an appeal from the judgment. Free Gold Mining Co. V. Spiers, 135 Cal. 130; 67 Pac. 61. The filing of an undertaking on appeal from an order a:ppointing a receiver operates as a supersedeas, suspends all authority of the receiver under the order, withdraws from him the right to the control and pos- session of the property involved, and re- stores the same to the pleading party from whom it had been taken. Jacobs v. Superior Court, 133 Cal. 364; 85 Am. St. Rep. 204; 65 Pac. 826. Mere possession, by a receiver appointed in a foreign juris- diction, of the debtor's property, however lawful, does not screen it from attach- ment in this state: to show a right superior to that of creditors, he must fall back upon the order appointing him receiver, and must depend upon the comity of this state as to the effect to be allowed that order. Humphrevs v. Hopkius, 81 Cal. 551; 15 Am. St. Eep. 76; 6 L. R. A. 792; 22 Pac. 892; Ward v. Pacific Mut. Life Ins. Co., 135 Cal. 235; 67 Pac. 124; Laek- mann v. Supreme Council, 142 Cal. 22; 75 Pac. 583. Where property is in the hands of a receiver appointed in a suit to cancel a lease, and a similar suit was brought in a Federal court for the same purpose, to which the receiver was not a party, it cannot be objected to that court's juris- diction that the property is in the hands of such receiver, and that leave had not been obtained from the state court to sue him. Isom v. Rex Crude Oil Co., 147 Cal. 663; 82 Pac. 319. Receiver's certificates. It will be pre- sumed, in support of a judgment holding; a receiver's certificates valid, that every- thing necessary to authorize the court to order the issue of such certificates was shown, in the absence of evidence to the contrary. Illinois Trust etc. Bank v. Pa- cific Ey. Co., 115 Cal. 285; 47 Pac. 60. What expenses receiver may incur. The appointment of a receiver implies a ma- terial diminution of the fund out of which creditors are to be paid, and from which, iit^ the first place, the fees of the receiver, his counsel and assistants, are to be subtracted. Havemever v. Superior Court, 84 Cal. 327;^. 18 Am. St. Rep. 192; 10 L. R. A. 627; 24- Pac. 121. The receiver should be allowed reasonable fees for counsel employed by him in the proper discharge of his trusty the costs of litigation, and the expenses in taking care of, protecting, and repair- ing the property in his charge. McLane V. Placerville etc. R. R. Co., 66 Cal. 606;, 6 Pac. 748. The receiver should be al- lowed reasonable expenses incurred by him in the harvesting of a crop, although, his appointment was improper (Locke v. Klunker, 123 Cal. 231; 55 Pac. 993); and. he should be allowed expenses incurred in- finishing an uncompleted contract, and paying debts incident thereto, in winding- up the affairs of a partnership. Rochat v.. Gee, 137 Cal. 497; 70 Pac. 478. The trus- tee and receiver of a railroad corporation should be allowed his expenses, reasonably incurred in the discharge of his trust, and such expenses are a lien upon the trust property, prior to that of the bondholders. McLane v. Placerville etc. R. R. Co., 66 Cal. 606; 6 Pac. 478. Where, under cir- cumstances authorizing such action, prop- erty is taken into the possession of the court, through a receiver, of such a char- acter as to give the public a right to its- continued operation and use, the court acquires the right and assumes the obliga- tion of keeping such property in operation, and is authorized to incur expense and create obligations therefor (Illinois Trust etc. Bank v. Pacific Ry. Co., 115 Cal. 285 f 47 Pac. 60) ; and the receiver is justified, in expending money for the purchase of rolling-stock and machinery, necessary for the operation of a railroad. McLane v. Placerville etc. R. R. Co., 66 Cal. 606; 6 Pac. 478. The court may properly direct a receiver to pay a physician's bill for professional services, found to be a neces- sary item of maintenance, and being the purpose for which the funds were in the hands of the receiver. Murray v. Murrav^ 115 Cal. 266; 56 Am. St. Rep. 97; 37 L. R. A. 626; 47 Pac. 37. Compensation and reimbursement of re- ceiver. The amount of compensation and. expenses allowed a receiver is properly costs of suit, and should be paid in pref- erence to general creditors. Ephraim v.. Pacific Bank, 136 Cal. 646; 69 Pac. 436. 599 COMPENSATION, ETC. — FINAL ACCOUNT — DISCHARGE. §568 Money in the hands of a receiver, colloctcil by him under his order of appointment, is subject to his lien upon it for his fees and costs of receivership. Garniss v. Su- perior Court, 88 Cal. 413; 26 Pac. 3.31. The costs of a receiverahii) are ]irimarily a charcje upon, and are to be ]iaid out of, the fund in his possession; but it is by no means the rule, that a receiver must in all cases look to that fund alone for his reimluirsement, and that he has no other remedy if that fund is not avail- able; nor is it necessary that the order settling the receiver's account shall de- termine what party is liable to him for his expenses and compensation, and where, before such settlement, the suit was dis- missed by the ]ilaintiff, at whose instance he was api)ointed, he may maintain an action against the plaintiff for his ex- penses and compensation. E[)hraim v. Pacific Bank, 129 Cal. 589; 62 Pac. 177. A mortgagee at whose instance a receiver is appointed in an action for the foreclos- ure of a mortgage is answerable for the costs of the receivership, and the receiver has a preferred lien for his expenses upon the funds and estate which come into his hands. Illinois Trust etc. Bank v. Pacific Ey. Co., 99 Cal. 407; 33 Pac. 1132; Fischer V. Superior Court, 110 Cal. 129; 42 Pac. 561. In an action by a receiver for com- pensation, it is a complete defense that he was appointed at his own request, and that he agreed to look entirely to the in- come from the projjerty for compensation. Ephraim v. Pacific Bank, 136 Cal. 646; 69 Pac. 436. An order fixing the compensa- tion of a receiver, founded on an abso- lutely void order of appointment, is equally void. Grant v. Los Angeles etc. Ey. Co., 116 Cal. 71; 47 Pac. 872. Where" a re- ceiver has gained possession of property through an irregular, unauthorized appoint- ment, or if the property belongs to a third party, and is taken from him by para- mount authority, the person at whose in- stance he was appointed is liable for his compensation. Ephraim v. Pacific Bank, 129 Cal. 589; 62 Pac. 177. The obligation to compensate a receiver appointed under a null and void order rests upon those who sought and procured his appointment. Grant v. Los Angeles etc. Ey. Co., 116 Cal. 71; 47 Pac. 872. An order fixing the compensation of a receiver, and taxing it as costs as against all the parties, and directing the receiver to apply toward its payment the balance of a fund in his hands as such receiver, is a final judgment in a collateral matter, and is appealable. Grant v. Los Angeles etc. Ey. Co., 116 Cal. 71; 47 Pac. 872.; Grant v. Superior Court, 106 Cal. 324; 39 Pac. 604. The statute of limitations does not begin to run against the action of a receiver to recover his compensation, until his account is allowed and settled; and the time dur- ing which an appeal from an order of al- lowance is pending suspends the running of the statute. Ephraim v. Pacific Bank, 129 Cal. 589; 62 Par. 177. Settling final account. The court has jurisdiction to settle the account of a re- ceiver ajipointed by it in an action, although the plaintiff dismissed the action before tlie issuance of any summons or the appearance of any defendant. Pacific Bank v. Madera Fruit etc. Co., 124 Cal. 525; 57 Pac. 462. A receiver, authorized to manage, control, and dispose of all the proi>erty of a partnership, may carry out to completion a special contract, and the court ma}" properly allow all his expenses incurred therein, in the settlement of his final account. Eochat v. Gee, 137 Cal. 497; 70 Pac. 478. Formal findings, separate from the order ai)proving or disapproving the account of a receiver, are not neces- sary in settling the final account. Eochat V. Gee, 137 Cal. 497; 70 Pac. 478; Estate of McPhee, 156 Cal. 337; 104 Pac. 455. There is no necessity for an order to the receiver to surrender property upon the settlement of his final account, where the property was originally purchased by the partnership from the receiver, and they never paid any part of the deferred purchase-money, and after the receiver paid all the debts and completed the con- tract the parties to the action took no further interest in the property, and the action was dismissed, and no claim for any settlement with the receiver was de- manded for nearlv ten years. Eochat v. Gee, 137 Cal. 497; 70 Pac. 478. Discharge of receiver. Where the ad- ministration of a receiver is unduly pro- longed, or he is unfaithful to his trust, the parties may apply for his discharge: they could have opposed his appointment in the first instance. Painter v. Painter, 138 Cal. 231; 94 Am. St. Eep. 47; 71 Pac. 90. Where the bill upon which a receiver was appointed is afterwards dismissed on demurrer, the duties of the receiver cease as between the parties to the action; and so where the defendant finally obtains judgment, the entry of judgment seems to have the effect of terminating the re- ceiver's functions, although the plaintiff perfects an appeal; but the abatement of the action or the entry of final judgment does not discharge the receiver ipso facto. Baughman v. Sujierior Court, 72 "Cal. 572; 14 Pac. 207. Although the functions of the receiver terminate with the determina- tion of the suit, yet he is still amenable to the court as its oflicer, until he com- plies with its direction as to the disposal of funds received during the receivership. Pacific Bank v. Madera Fruit etc. Co., 124 Cal. 525; 57 Pac. 462. The receiver is discharged by a decree in the cause, un- less he is expressly continued; but this discharge refers to the surcease of his §568 RECEIVERS. 600 functions as receiver proper, leaving on him the duty of properly accounting under the order of the court; and whether he is thereafter called receiver or not, he is subject to the order of the court with re- spect to the winding up of his affairs as receiver, and until he is discharged of his responsibilities as trustee. Baughman v. Superior Court, 72 Cal. 572; U Pac. 207. The end of the suit, its final adjudica- tion, gives cause for the discharge of the receiver, but does not, ipso facto, effect his discharge, which results only from an order or decree of the court so directing; after the settlement of the suit, the re- ceiver must have time and opportunity to prepare and present his accounts, and for the adjustment of the details of the receivership; nor does the dismissal of the action discharge the receiver from accountability to the court: he is still an officer of the court, and subject to its orders. Pacific Bank v. Madera Fruit etc. Co., 124 Cal. 525; 57 Pac. 462. The func- tions of a receiver, appointed pending an action for divorce, who does not take possession of any property before the judgment, terminates with the entry of the judgment. White v. White, 130 Cal. 597; 80 Am. St. Eep. 150; 62 Pac. 1062. Where the complaint is insufiicient to justify the appointment of a receiver pend- ing the action, the court has no power to continue him in office after the making of a final decree. Bank of Woodland v. Stephens, 144 Cal. 659; 79 Pac. 379. Where a receiver is appointed at the request of the plaintiff, for a purpose ancillary to the main object of the action, and judg- ment is afterwards rendered in favor of the defendant, an appeal by the plaintiff from the judgment does not deprive the lower court of jurisdiction to hear and determine a motion made by the defend- ant for the discharge of the receiver. Baughman v. Superior Court, 72 Cal. 572; 14 Pac. 207. Remedies. An order fixing the com- pensation of a receiver, whose appointment is in excess of the jurisdiction of the court, may be reviewed either upon certiorari or upon appeal, and prohibition does not lie to arrest the proceedings in the su- perior court (Grant v. Superior Court, 106 Cal. 324; 39 Pac. 604); and an order ap- pointing, a receiver, made without juris- diction, may be annulled upon certiorari, notwithstanding the petitioner has ap- pealed therefrom and has given an under- right to appeal from orders, made after final judgment, directing a receiver in an equity case to pay counsel fees; and there- fore certiorari does not lie to review the same. Elliott v. Superior Court, 144 Cal. 501; 103 Am. St. Eep. 102; 77 Pac. 1109. An order, pending suit, authorizing the receiver to make purchases to conduct the prosecution of work, to be paid for out of the funds in his hands, is not appeal- able. Free Gold etc. Co. v. Spiers, 135 Cal. 130; 67 Pac. 61. An order author- izing and directing a receiver to pay a judgment rendered against him, cannot be attacked upon appeal, on the ground that the court erred in originally appoint- ing him, where there is nothing to show that the court abused its discretion in granting the order. Painter v. Painter, 138 Cal. 231; 94 Am. St. Eep. 47; 71 Pac. 90. Where the receiver, under a void judicial order, seizes property in the possession of a stranger to the suit, an appeal affords no remed}' for the wrong threatened; in such case, prohibition is appropriate, and the fact that the petitioner could have appealed from the order appointing the receiver, does not preclude him from that relief; the writ runs to and operates directly upon the court, but indirectly upon the receiver; and if served upon the receiver, it is notice that the proceedings are arrested, and stays his hand. Have- meyer v. Superior Court, 84 Cal. 327; 18 Am. St. Eep. 192; 10 L. E. A. 627; 24 Pac. 121. The receiver may apply for the examination of the insolvent concern- ing his affairs: by this means the court can fully preserve the property of the insolvent and protect the rights of credi- tors. Dennery v. Superior Court, 84 Cal. 7; 24 Pac. 147. Where the receiver has possession of property under a void com- mission, and the further acts of the court are arrested by prohibition, the writ must require the restoration of the property to the petitioner, otherwise prohibition would be valueless; and where the court exceeds its jurisdiction in appointing a receiver, or in directing him to take spe- cific property out of the possession of a stranger, the wrong is in the order of the court, and the appropriate remedy is in some writ or proceeding operating on the court to restrain its judicial action, and not in the sort of resistance that may be opi^osed to an ordinary wrong-doer, or in such an action as may be brought against a private person who has com- mitted a trespass. Havemever v. Superior Court, 84 Cal. 327; 18 Am! St. Eep. 192; 10 L. R. A. 627; 24 Pac. 121. Suits by receivers outside the state of their appointment. See notes 6 Am. St. Rep. 185; 8 Am. St. Kep. 49 ; 4 L. K. A. (N. S.) 824. Extraterritorial powers of receiver. See notes 8 Am. St. Kep. 49; 15 Am. St. Rep. 79. Relation of receiver to pre-existing liens and their enforcement. See note 71 Am. St. Rep. 352. Actions against receiver without leave of court. See note 74 Am. St. Rep. 285. Power to create liens on property in custody of receivers. See note 84 Am. St. Kep. 72. Power of receiver of corporation to issue cer- tificates. See note Ann. Cas. 1913C, 40. Power to permit receiver of private corpora- tion to create liens on its property. See note 16 L. R. A. 603. 601 INVESTMENTS — UNCLAIMED FUNDS — DEPOSIT IN COURT. §§ 569-572 Rights of receiver as to property outside of the Jurisdiction in which he is appointed. See note 'J3 L. K. A. 52. Right of receiver to question validity of at- tachment. See note 33 L. H. A. 770. Right of receiver of drawer appointed after the Issuance of a draft or check but before its pres- entation, as against the holder. See note 2 L. R. A. (N. S.) 83. Power of railway receiver to contract for trans- portation beyond own line. See note 31 L. R. A. (N. S.) 33. CODE COMMISSIONERS' NOTE. 1. Gener- ally. Ho may employ counsel. Adams v. AVoods, 8 Cal. 315. Generally, he can pay out nothing, except on an order of the court; but there are exceotioiis to the rule, and he will not be denied reimbursfmints in every case in which he ne- glects to obtain the order, especially in a court of equity. Adams v. Woods, 15 Cal. 207. On an aijplication, after final judfcmenl, for an order for a receiver, that he pay over to the prevailing party money in his hands as receiver, it will not be presumed that the receiver has transcended his duties and took possession of property to which he was not entitled; nor is the opposite party en- titled to have issues framed and submitted to a referee or jury to ascertain the ownership of the money in the receiver's hands. Whitney v. Buck- man, 20 Cal. 451. 2. Fees. See Adams v. Haskell, 6 Cal. 475. § 569. Investment of funds. Funds in the hands of a receiver may be invested upon interest, by order of the court ; but no such order can be made, except upon the consent of all the parties to the action. Legislation § 569. 1. Enacted March 11, 1S73. 2. Amtndmeut by Stats. 1901, p. 142; un- constitutional. See note ante, § 5. § 570. Disposition of unclaimed funds in hands of receiver. A receiver having any funds in his hands belonging to a person w^hose whereabouts are unknown to him, shall, before receiving his discharge as such receiver, publish a notice, in one or more newspapers published in the county, at least once a week for four consecutive weeks, setting forth the name of the owner of any unclaimed funds, the last known place of residence or post-office ad- dress of such owner and the amount of such unclaimed funds. Any funds remaining in his hands unclaimed for thirty days after the date of the last publication of such notice, shall be reported to the court and, upon order of the court, all such funds must be paid into the state treasury accompanied with a copy of the order, which must set forth the facts required in the notice herein provided. Such funds shall be paid out by the state treasurer to the owner thereof or his order in such manner and upon such terms as are now or may hereafter be provided by law. Legislation § 570. 1. Added by Stats. 1913, p. 92. 2. Amended by Stats. 1915, p. 107, substi- tuting the present final s'liteni-e for one reading, "All funds so paid into tiie state treasury must be received, invested, accounted for and paid out, in the same manner and by the same offi- cers as is provided by law in the case of es- cheated estates, and in section twelve hundred and seventy-two of this code." CHAPTER VI. DEPOSIT IN COUKT. S 572. Deposit in court. § 574. Manner of enforcing the order. § 573. Money paid to clerk must be deposited with county treasurer. § 572. Deposit in court. When it is admitted by the pleadings, or shown upon the examination of a pai-ty to the action, that he has in his possession, or under his control, any money or other thing capable of delivery, w'hich, being the subject of litigation, is hold by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court. Wlien court may order deposit. To jus- tify the making of an order requiring a deposit in court, the admission, in the pleadings, of having property, not di- rectly the subject of litigation, in poss-.^s- sion, belonging to another, must be free from any claim thereto. Burke v. Superior Legislation 8 572. 1. Enacted March 11, 1872; based on Practice Act, § 142. 2. Amendment by Stats. 1901, p. 142; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1907, p. 710, (1) in first line, changing "pleading" to "pleadings"; (2) inserting "to the action," after "party," "as in its present form," the rode commissioner said, "the section is entirely misleading." §573 DEPOSIT IN COURT. 602 Trustee. This section refers to prop- erty without question in the hands of a trustee as trust property, or which be- longs to or is due to another: it does not refer to that which an alleged trustee claims title to in his own right; and, under it, the court has no authority to adjudi- cate the title to property held by a person claiming it as his own. Ex parte Casey, 71 Cal. 269; 12 Pac. 118. Where the money directed to be paid into court was not at that time, and never had been, in the hands of the trustee, but was made up of moneys which the trustee should have but had not received as interest, the order is not within the class provided for by this section and the two following sections. Williams v. Dwinelle, 51 Cal. 442. Sheriff's^ deposit not included. This sec- tion and § 573, post, provide for a case different from that of a sheriff depositing with the treasurer of a county, moneys re- ceived from a sale in foreclosure proceed- ings. Heppe V. Johnson, 73 Cal. 265; 14 Pac. 833. Eight to recover interest on fund in litigation or deposited in court. See note Ann. Cas. 1912B, 1004. Court, 7 Cal. App. 178; 93 Pac. 1058. The order allowed by this section is, that the party pay the money into court, or to the party to whom it is admitted by the pleading, or shown by the examination of the party, to be due: to justify the court in ordering a deposit in bank, sub- ject to its further order, of money which the party claims as his own, the court must first determine that such party has no title to it. Ex parte Casey, 71 Cal. 269; 11 Pac. lis. If the money in the pos- session of the party is not the subject of the litigation, but its payment is incident thereto, dependent upon the judgment to be rendered, as in the case of an action for redemption, specific performance, ac- counting, rescission, or the like, the pro- visions of this section do not authorize the issuance of an order to deposit it in court; and where the court ordered certain moneys, or a certificate of deposit, to be paid into court, and exception was taken thereto, such order may be reviewed as error of law occurring at the trial, upon appeal from an order granting or denying a new trial. Green v. Duvergey, 146 Cal. 379; 80 Pac. 234. § 573. Money paid to clerk must be deposited with county treasurer. Whenever money is paid into or deposited in court, the same must be de- livered 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 otherwise directed by law, deposit it with the county treasurer, to be held by him subject to the order of the court. The treasurer must keep each fund distinct, and open an account with each. Such appointment must be filed with the county treasurer, who must exhibit it, and give to each per- son applying for the same a certified copy of the same. It shall be in force until a revocation in writing is filed with the county treasurer, who must thereupon write "revoked," in ink, across the face of the appointment. For the safekeeping of the money deposited with him the treasurer is liable on his official bond. is then deposited by the clerk with the county treasurer, as a deposit of court, the same becomes a deposit in court; and, however erroneously the court may have acted in the premises, its order, being within its jurisdiction, is not absolutely void, and is impregnable to collateral at- tack. Agoure v. Peck, 17 Cal. App. 759; 121 Pac. 706. County treasurer should cash certificate of deposit. Where a county treasurer re- ceives, as a deposit in court, a certificate of deposit indorsed to him, it is his duty to reduce it to money; if he does not, and loss ensues, he is answerable on his laond. Agoure v. Peck, 17 Cal. App. 759; 121 Pac. 706. CODE COMMISSIONUES' NOTE. Stats. 1863- 64, p. 468. Legislation § 573. 1. Enacted March 11, 1873 (based on Stats. 1863-64, p. 408), and then read: "If the money is deposited in court it must be paid to the clerk, who must deposit it with the county treasurer, by him to be held subject to the order of the court. For the safe-keeping of the money deposited with him the treasurer is liable on his official bond." 2. Amendment by Stats. 1901, p. 142; un- constitutional. See note ante. § 5. 3. Amended by Stats. 1907, p. 711; the code commissioner saying, "The amendment consists in consolidating §§ 573 and 2104, there being two sections covering the same subject, where only one is needed, and omits the first sentence of the former section, so as to remove any possible conflict between them." When added by Code Amdts. 1873-74, p. 394, § 2104 had, (1) in the first line, the words "moneys are" instead of "money is," and (2) the word "shall" instead of "must," in all instances. Effect of order of court. When the court has taken cognizance of a fund, and, by its judgment, determines the same to have been paid into court, and the money 603 MONEY ORDERED DEPOSITED MANNER OF ENFORCING ORDER. § 574 § 574. Manner of enforcing the order. Wlieuever, in the exercise of its authority, a court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, beside punishing the disobe- dience, may make an order requiring the sheriff to take the money, or thing, and deposit or deliver it in conformity with the direction of the court. S i^oo'^^^"^ *^° disobedience. Contempt. Post. bill as formerly used in chancery; so that s"heriff'8 duties as to official moneys. Pol ^°^ property reachable by a creditor's bill •Code, § 41G2. may now bo reached by the process of pro- Legislation § 574. Enacted March 11, 1873. ceedinys supplementary to execution. Pa- Scope of section. Proceedings under Tm Sen^JoAtrTu' "r/^"'; '''^^' t?. this section and §§ 714-721, pSst, were cS' 2n-37A^ St Po -n' ,^J o ^"'^?°' ^^ -intended as a substitute for the creditors' ' ^^' ^^ ^'°- ^*- ^^^^ '^' ^^ P^*^' ^^^' §577 JUDGMENT, IN GENERAL. 604 TITLE VIII. TRIAL AND JUDGMENT IN CIVIL ACTIONS. Chapter I. Judgment in General. §§ 577-583. II. Judgment upon Failure to Answer. § 585. III. Issues. Mode of Trial, and Postponements. §§ 588-596. IV. Trial by Jury. §§ 600-628. Article I. Formation of Jury. §§ 600-604. II. Conduct of Trial. §§ 607-619. III. The Verdict. §§ 624-628. V. Trial by Court. §§ 631-636. VI. References and Trials by Eeferees. §§ 638-645. VII. Provisions Relating to Trials in General. §§ 646-663a. Article I. Exceptions. §§ 646-653. II. New Trials. §§ 656-663a. VIII, Manner of Giving and Entering Judgment. §§ 664-6801/^. 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 proceed as to others. § 580. The relief to be awarded to the plaintiff. § 581. Action may be dismissed, or nonsuit en- tered. § 581a. Dismissal of action for failure to issue summons, when. § 581b. Dismissal of actions after transfer. I 582. All other judgments are on the merits. § 583. Dismissal of actions. § 577. Judgment defined. A judgment is the final determination of the rights of the parties in an action or proceeding. determines the rights of the parties should be called a judgment, and that every other direction of a court or .judge mad© or entered in writing should be denomi- nated an order. This section, and § 1003, post, were taken from the New York Code of Procedure, the purpose of which sections, as explained by the codifiers of that state, was to avoid the confusion in- cident to the use of the word "judgment"^ in two senses, one as interlocutory and the other as final; it being better to use the word only in the latter sense, and t» designate all other written directions of the court as orders. Thompson v. Wliite^ 63 Cal. 505. Judgment, final judgment, and order, defined. A judgment constituting a "final determination of the rights of the par- ties," is a final judgment. Hentig v. John- son, 8 Cal. App. 221; 96 Pac. 390. A judgment may be final, in the sense of the term as used in this section and §§ 936, 1908, post, and yet not final as used in § 939, post. People v. Bank of Mendocino County, 133 Cal. 107; 65 Pac. 124. A judgment without parties, or a judgment, however perfect in form, attended with none of the consequences of a judgment,^ can be a judgment only by pretension, and its ratification by the creditor cannot affect rights acquired by a third party prior to the ratification, and while the judgment was one only in name. Wilcox- Judgment. 1. Confession, by. Post, § 1132. 2. Default, by. Post, § 585. 3. Demurrer, on. Post, § 636. 4. Estoppel as to. Post, § 1903. 5. Generally. Post, § 664. 6. Nonsuit. Post, § 581. 7. On trial by court. Post, § 633. 8. On trial by jury. Post, § 664. Order, defined. Post, § 1003. Judgment in special proceeding, defined. See post, § 1064. Legislation § 577. 1. Enacted March 11, 1872 ; based on Practice Act, § 144 (New York Code, §245), which had, (1) the word "the" instead of "an," before "action," and (2) at end of section, the words, "and may be entered in term or vacation." 2. Amendment by Stats. 1901, p. 143; un- constitutional. See note ante, § 5. Scope of section. The court is not pro- hibited by this section, nor by § 1003, post, from entering such intermediate de- terminations as the exigencies of a case may demand, and there is no conflict be- tween these sections and § 187, ante, relating to the means provided for exer- cising jurisdiction. Thompson v. White, 63 Cal. 505. This section must be read in connection with §§ 138, 139, of the Civil Code, in actions for divorce and for the control of minor children. McKay v. McKay, 125 Cal. 65; 57 Pac. 677. The purpose of this section is, not to abolish the power of a court of equity to pronounce what in equity practice was called an interlocutory decree or decretal order, but only to provide that that which finally 605 JUDGMENT — FINAL JUDGMENT — ORDER. §577 son V. Burton, 27 Cal. 228; 87 Am. Dec. G6. No particular form of judgment is i)re- scribed in the statute; hut it must bo rendered by the court in such a mode as will conform to the cause of action stated and the jiroof adduced on the trial. Mc- Garrahan v. Maxwell, 28 Cal. 78; Heutig V. Johnson, 8 Cal. App. 221; 96 Pac. 390. The decision of the court, if it finally determines the rights of parties touching the matters in controversy, is a judgment; and it is immaterial whether the court grants relief to each of the i)arties, or to one party only, or whether the relief is, in its character, legal or equitable, or both. McGarrahan v. Maxwell, 28 Cal. 75. An order is a decision made during the progress of the cause, either prior or sub- sequent to final judgment, settling some point of practice or some question col- lateral to the main issue presented by the pleadings, and necessary to be dis- posed of before such issue can be passed upon by the court, or necessary to be de- termined in carrying final judgment into execution; a final judgment is the deter- mination of the court upon the issues pre- sented by the pleadin'gs, which ascertains and fixes absolutely and finally the rights of the parties in the particular suit in relation to the matter in litigation, and puts an end to the suit. Loring v. Illsley, 1 Cal. 24; McGuire v. Drew, 83 Cal. 225; 23 Pac. 312; Estate of Smith, 98 Cal. 636; 33 Pac. 744; Wells v. Torrance, 119 Cal. 437; 51 Pac. 626. An order, as distin- guished from a final judgment, is the judgment or conclusion of the court, upon any motion or proceeding not declared, de- termining the rights of the parties. Es- tate of Rose, 80 Cal. 166; 22 Pac. 86. The judgment becomes final upon its entry, not only as to the matters actually deter- mined, but also as to every other matter which the parties might have litigated in the cause and have had decided. McKay V. McKay, 125 Cal. 65; 57 Pac. 677. Every order of a court or judge is, in one sense, a judgment; and the term "final judg- ment" means the ultimate or last judg- ment, which puts an end to the suit or proceedings. Estate of Smith, 98 Cal. 636; 33 Pac. 744. The judgment, when en- tered, becomes the record of what the court has determined, and it is then as binding as if entered immediately upon its rendition. Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491; 26 Pac. 1074. The determination of a matter contained in an order is not a judgment. Scott v. Shields, 8 Cal. App. 12; 96 Pac. 385. Only one judgment is to be included in the judgment roll, and such judgment is the one defined in this section as constituting the final determination of the rights of the parties in the action. Colton Land etc. Co. V. Swartz, 99 Cal. 278; 33 Pac. 878. A judgment dissolving a partnership, and directing a sale of the partnership prop- erty and a division of the proceeds, is a final judgment. Clark v. Dunnam, 46 Cal. 204. A dciTee refusing to set aside a homestead is, in its essentials, a judgment; and a determination, upon the issue of widowhood, that a woman is not a widow, is a judgment. Estate of Harrington, 147 Cal. 'l24; 109 Am. St. Rep. 118; 81 Pac. 546. An order settling a receiver's ac- count, although made before there has been a final judgment in the action in w-hich he was appointed, is a final deter- mination of the rights of the parties. Los Angeles v. Los Angeles City Water Co., 134 Cal. 121; 66 Pac. 198. A decree pro confesso on a cross-bill in a suit in equity in a Federal court is interlocutory, and not final; and, after such decree has been vacated, no suit can be maintained in the state court upon it, or to annul the order vacating it. Blythe Co. v. Bank- ers' Investment Co., 147 Cal. 82; 81 Pac. 281. The statute of limitations does not begin to run against an action upon the judgment from the date of its entry, but only after the lapse of the period within which an ajipeal might be taken from the judgment if none is taken therefrom, or after the final determination following an appeal so taken. Feeney v. Hincklev, 134 Cal. 467; 86 Am. St. Rep. 290; 66 Pac. 580. The general rule, that, until a judg- ment becomes final by affirmance on ap- peal, or by lapse of the time within which an appeal may be taken, it is not admis- sible in evidence and cannot be relied on as the foundation of rights declared in it, does not apply to an action in the nature of a creditor's bill. Sewell v. Price, 164 Cal. 265; 128 Pac. 407. An entry by the clerk, at the end of the trial, in the min- utes of the court, of the decision of the judge, being but a ministerial act of the clerk, does not constitute a judgment; but where the decision was rendered by the judge, but was not entered, before he went out of office, the entry of the judg- ment by the clerk, after the term of the former judge had expired, being but a ministerial act, has as much effect as if made before. Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491; 26 Pac. 1074. An order settling the account of an ad- ministrator is not a final determination of the rights of the parties, constituting a judgment within the meaning of § 939. post, and especially where, in settling the account, portions thereof are left unset- tled and undetermined. Estate of Rose, 80 Cal. 166; 22 Pac. 86. The judgment is not required to be signed by the judge, and a judgment produced from the original records needs no signature or exemplifica- tion; the signature is merely to give the clerk a surer means of accurately enter- ing what has been adjudged. Crim v. Kes- sing, 89 Cal. 478; 23 Am. St. Rep. 491; 26 §577 JUDGMENT, IN GENERAL. 606 Pac. 1074; Clink v. Thurston, 47 Cal. 21; Estate of Cook, 77 Cal. 220; 11 Am. St. Eep. 267; 1 L. E. A. 567; 17 Pac. 923; 19 Pac. 431. Judgments against decedents. A judg- ment for mesne profits against the estate of a deceased person should be made pay- able in due course of administration. Nathan v. Dierssen, 164 Cal. 607; 130 Pac. 12. Judgments of sister states. One judg- ment, being of as high a nature as an- other, a judgment in another state cannot extinguish or determine a judgment ren- dered here. Lillj^-Brackett Co. v. Sonne- mann, 163 Cal. 632; Ann. Cas. 1914A, 364; 42 L. R. A. (N. S.) 360; 126 Pac. 483. Identity of names in judgment. Mere identity of name, in a judgment, does not establish the fact that the plaintiff and the defendant are the same person. Buck- eye Eefining Co. v. Kelly, 163 Cal. 8; Ann. Cas. 1913E, 840; 124 Pac. 536. Validity of judgments. The validity of a judgment is governed by the laws of the state where it was rendered. Fox v. Mick, 20 Cal. App. 599; 129 Pac. 972. Every presumption is in favor of a judg- ment: it will be presumed that the plain- tiff and the defendant, although bearing the same name, were different persons. Buckeye Eefining Co. v. Kelly, 163 Cal. 8; Ann. Cas. 1913E, 840; 124 Pac. 536. Jurisdiction. The jurisdiction of a court of a sister state may be controverted bv extraneous evidence. Fox v. Mick, 20 Cal. App. 599; 129 Pac. 972. Where the procedure is regulated by statute, juris- diction over the subject-matter of the action, as well as over the parties, ter- minates with the entry of final judgment therein, except for the purpose of en- forcing the judgment and carrying out its provisions, or for correcting mistakes in the record, upon proper application there- for. McKay v. McKay, 125 Cal. 65; 57 Pac. 677. Attack on judgments. A domestic judg- ment, regular upon its face, is not the subject of collateral attack. Layne v. Johnson, 19 Cal. App. 95; 134 Pac. 860. The judgment of a court of a sister state may always be impeached by showing that the court rendering it had no juris- diction over the parties or the subject- matter of the action. Fox v. Mick, 20 Cal. App. 599; 129 Pac. 972. On a motion by the judgment debtor to have the satis- faction of a judgment entered of record, an assignee of the judgment cannot, for mere error in the exercise of jurisdiction, attack the validity of the judgment on which execution issued against his as- signor. B\ickeve Refining Co. v. Kellv, 163 Cal. 8; Ann. Cas. 1913E, 840; 124 Pac. 536. Constructive service, fraud, due dili- gence. A judgment rendered upon a con- structive service of summons should be set aside, where the evidence shows that the plaintiff did not use due diligence to- find the defendant, and that his aflSdavit for service by publication was false, as on, a direct attack upon the ground of fraud, by the plaintiff in obtaining it, the ques' tion of due diligence, as between the parties, is open. Neither an order for publication of summons, based upon affi- davit, nor a judgment following a service by publication thereon, is conclusive of the fact that due diligence was used to find the defendant. It is a fraud to pre- sent a false afiidavit to obtain an order for the service of summons by publication, and a judgment based upon an order so obtained will be set aside, in an action by the defendant constructively served^ against the plaintiff, where no rights of innocent third parties claiming under the judgment, are involved. Stern v, Judson, 163 Cal. 726; 127 Pac. 38. Findings and conclusions of law. When- ever findings are required, there can be no rendition of the judgment until they are made and filed with the clerk. Crim V. Kessing, 89 Cal. 478; 23 Am. St. Eep. 491; 26 Pac. 1074. On a collateral attack, an inconsistency between the findings and the judgment does not impair the judg- ment: the question whether the findings support the judgment cannot be raised in a collateral action. Crim v. Kessing, 89 Cal. 478; 23 Am. St. Rep. 491; 26 Pac. 1074; Johnston v. San Francisco Savings- Union, 75 Cal. 134; 7 Am. St. Rep. 129; 16 Pac. 753. Whenever findings are waived or are not required, the entrj' of the court's decision in the minutes of the court constitutes "rendition of the judgment," in the same manner as under the Practice Act. Crim v. Kessing, 89- Cal. 478; 23 Am. St. Rep. 491; 26 Pac. 1074. A judgment for mesne profits may be rendered, with- out a judgment for restitution, or without findings establishing the plaintiff's right to restitution. Nathan v. Dierssen, l64 Cal. 607; 130 Pac. 12. The court may, at any time before entry of judgment,, change its conclusions of law upon facts found; and such change may be made by a judge other than the one who tried the case. Crim v. Kessing, 89 Cal. 478; 23 Am.. St. Rep. 491; 26 Pac. 1074. Ees adjudicata. Where an issue of fact,, vital to the controversy, has been tried,, and a judgment depending for its suffi- ciency upon the finding of fact becomes final, that determination of fact is forever binding, in every court, between the par- ties thereto and their privies. Estate of. Harrington, 147 Cal. 124; 109 Am. St. Rep. 118; 81 Pac. 546; Quirk v. Rooney, 130 Cal. 505; 62 Pac. 825; Bingham v. Kear- ney, 136 Cal. 175; 68 Pac. "597. The test of the plea of res adjudicata is the subject- matter of the action, and not the remedy by which the party may seek judicially to, ' 607 RES ADJUDICATA — MERGER, ETC. — BURNT RECORDS — APPEAL. §577 assert the riji^bt of action. Suisun Lumber Co. V. r.-iirficld School District, ]9 Cal. App. 587; 127 Pac. 349. It is not neces- sary that all of the parties plaintifT and defendant to a former action should be joined in a later action, to render a plea of res adjudicata available as an estoppel. Where an action was against a number of defendants, and its merits Avere adjudi- cated as to all, and the same plaintiff sues one, only, of such defendants upon the same cause of action, the later action is between "the same jiarties" as those of the former, upon the question of res ad- judicata as between them. The plea of res adjudicata applies to every point that properly belongs to the subject of the litigation, and which the parties, exerting reasonable diligence, might have put for- ward at the time. Suisun Lumber Co. V. Fairfield School District, 19 Cal. App. 587; 127 Pac. 349. A judgment, based upon the confession of an insolvent debtor, made without the request and without the knowledge of the creditor, and entered up at the instance of the debtor alone, is not a judgment, as the creditor is not bound to accept it as the measure of his rights, nor would such confession bar an action brought by him on the same grava- men, nor estop the party by whom the confession was made from denying the facts set forth in it. Wilcoxson v. Burton, 27 Cal. 22S; 87 Am. Dec. 66. A judgment that property involved in the action is community property, estops the wife from subsequently asserting that it is not such; it also estops a third party plaintiff from claiming, as between himself and the wife, that he acquired the legal title by deed. Nolan v. Hyatt, 163 Cal. 1; 124 Pac. 439. Where the plaintiff, in an action to recover pledged shares of corporate stock, obtains judgment for a return of the property, such judgment is a bar to a subsequent action to recover damages for wrongfully withholding its possession, or for the repayment of attorneys' fees in- curred in the prior action. Van Home v. Treadwell, 164 Cal. 620; 130 Pac. 5. A judgment of a court in probate, in home- stead proceedings, raises an estoppel against a i)arty seeking to have the home- stead right set aside, where the right is denied upon the ground that such })erson was not the widow of the deceased, and the question of widowhood cannot be afterwards raised in an attempted liti- gation of the same claim upon distribution. Estate of Harrington, 147 Cal. 124; 109 Am. St. Rep. 118; 81 Pac. 546. The ques- tion of the validity of an executor's sale under the provisions of a will, made with- out notice, is concluded by the decree of distribution, where the court had juris- diction: it cannot, more than thirt}' years afterwards, be again litigated in a col- lateral proceeding by the heir. Bagley v. San Francisco, 19 Cal. App. 2.j5; 12.j Pac. 931. Where a city alone is answerable for a demand against it, a former application for a writ of mamlate against the city treasurer is no bar to an action for a money judgment against the city. Madary V. Fresno, 20 Cal. App. 91; 128 Pac. 340. Merger of judgments. Merger takes place only where a security or an indebt- edness of an inferior passes into one of a superior degree. Liliy-Brackett Co. v. Sonnemann, 163 Cal. 632; Ann. Cas. 191 4A, 364; 42 L. R. A. (N. S.) 360; 126 Pac. 483. A judgment obtained in one state does not become merged in a judgment based upon it, which is rendered in favor of the judg- ment creditor in another state: so long as the indebtedness evidenced thereby is unsatisfied, successive suits in different states may be prosecuted. Lilly-Brackett Co. V. Sonnemann, 163 Cal. 632; Ann. Cas. 1914A, 364; 42 L. R. A. (N. S.) 360; 126 Pac. 483. Changes in judgments. Changes in judg- ments are limited to the cases and condi- tions expressed in the statute by which thev are authorized. McKay v. McKay, 125' Cal. 65; 57 Pac. 077. Restoration of burnt records. A pro- ceeding may be maintained for the restora- tion of a judgment roll destroyed by fire, although, at the time of such destruction, a motion for a new trial and the settle- ment of a bill of exceptions to be used thereon were then pending, and it is im- possible to restore the contents of the bill of exceptions; and in such proceeding the effect of the restored record is not in- volved. Foerst v. Kelso, 163 Cal. 436; 125 Pac. 1054. Action on judgment. No action lies upon a juilgment until it is final. Feeney V. Hinckley, 134 Cal. 467; 86 Am. St. Rep. 290; 66 Pac. 580; Hills v. Sherwood, 33 Cal. 474; Gillmore v. American etc. Ins. Co., 65 Cal. 63; 2 Pac. 882. Burden of proof. The burden is on the assignee of a part of a judgment to affirma- tively show that the judgment debtor had notice of the assignment before pay- ing the judgment. Buckeve Refining Co. V. Kellv, 163 Cal. 8; Ann. Cas. 1913E, 840; 124 Pac. 536. Appeal. Where the relative rights of the parties are determined on appeal, the decision is, as to that subject and to that extent, the law of the case. Haggin v. Clark, 71 Cal. 444; 9 Pac. 736; 12 Pac. 478; Davidson v. Dallas, 15 Cal. 75; Leese v» Clark, 20 Cal. 387; Pico v. Cuyas, 48 CaK 639. Where, on the rendition of a final judgment, the court also grants a perpetual injunction, there is but one judgment, and the decree is necessarily included in the appeal taken therefrom. McGarrahan v. Maxwell, 28 Cal. 75. What deemed adjudged in judgments See note post, § 1911. §577 JUDGMENT, IN GENERAL. 608 Judgment as a contract. See note 2 Am. St. Rep. 414. CODE COMMISSIONERS' NOTE. The origi- nal section contained the words, "and may be en- tered ill term or vacation." They were omitted, first, because they are not part of the definition; second, because the same provision is contained in the other parts of this code. See, as to supreme court, §48; district courts, § 78 ; county courts, § 89; justices' courts, § 118. 1. Judgment, defined. Every definite sentence or decision of a court, by which the merits of the cause are determined, is a judgment. Belt v. Davis, 1 Cal. 138; Loring v. Illsley, 1 Cal. 24. A judgment dismissing an action is, in effect, a final judgment in favor of the defendant. Dow- ling V. Polack, 18 Cal. 625. An order of the county court dismissing an appeal is a judgment, within the meaning of this section. Pearson v. Lovejoy, 35 How. 193; 53 Barb. 407. A judg- ment may be a final adjudication in different senses. It may be final as to the court which renders it, without being final as to the subject- matter. Although a judgment may be final with reference to the court which pronounced it, and as such he the subject of an appeal, yet it is not necessarily final with reference to the property or rights affected, so long as it is subject to ap- peal and liable to be reversed. Hills v. Sherwood, 33 Cal. 478; United States v. Schooner Peggy, 1 Cranch, 103; 2 L. Ed. 49. 2. Order, defined. See § 1003 of this code. Order, as distinguished from a final judgment, is the judgment or conclusion of the court upon any motion or proceeding. Oilman v. Contra Costa County, 8 Cal. 57; 68 Am. Dec. 290; Effect of. McKinley v. Tuttle, 34 Cal. 235. 3. At -what time judgment should be entered. If there is no question as to the proper judgment to be entered, the entry should be made at once, without waiting- for a motion for a new trial. A stay of proceedings under the judgment protects the losing party in case the judgment should be set aside, or a new trial be granted. Hutchinson V. Bours, 13 Cal. 51. 4. Entry in vacation. In an action tried with- out a jury, judgment upon the findings may be entered in vacation. People v. Jones, 20 Cal. 50. If the judgment is pronounced by the court, drawn up in the form intended to be entered, signed by the judge, and filed with the clerk before ad- journ;nent of the term, it becomes the judgment of the court of the term at which it was pro- nounced, and it may, by the clerk, be entered in the judgment-book during vacation. Casement v. Ringgold, 28 Cal. 335. Where a judgment is re- versed on appeal, with directions that a certain judgment be entered by the district court, such judgment can be entered by the clerk of the dis- trict court in vacation. People v. Jones, 20 Cal. 50. 5. Judgment against executors and administra- tors. In an action against an executor or admin- istrator upon a rejected claim, the judgment should ascertain the amount due, and adjudge the same to be a valid claim against the estate, and provide that it be paid by the defendant in the due course of administration. No execution can be awarded. Rice v. Inskeep, 34 Cal. 224; Bacouillat v. Sansevain, 32 Cal. 376. 6. Judgment against married woman. A judg- ment may be rendered against a married woman for costs, in an action brought by her concerning her separate property; and when so rendered, an execution in the usual form may be issued on the same, and her separate property sold by the sherifT. Leonard v. Townsend, 26 Cal. 442. 7. Judgment against husband and wife. In an action against husband and wife for services ren- dered \>y plaintiff to tlie wife, before marriage, judgment may be rendered against both defend- ants, with directions that it be enforced only against the separate property of the wife and the common property of both. "Van Maren v. John- son, 15 Cal. 308. 8. Judgment against Infants. It is a question wheth*-r, under our practice, an infant is entitled to have a dav piven in the judgment to show a cause against it. An infant is as much bound by a decree in equity as a person of full age, and will not be permitted to dispute it, except upon the same ground as an adult might have disputed it. If fraudulent, or obtained by collusion, it must be attached in a direct proceeding. Joyce V. McAvoy, 31 Cal. 273; 89 Am. Dec. 172. 9. Presumptions in favor of judgments. Juris- diction will be presumed in the case of a judg- ment of a court of general jurisdiction; but if the want of jurisdiction appears on the face of the record of the judgment, the judgment is void, and it may be attacked in a collateral proceeding. Forbes v. Hyde, 31 Cal. 342; Thompson v. Mon- row, 2 Cal. IOC; 56 Am. Dec. 318; Kilburn v. Ritchie, 2 Cal. 148; 56 Am. Dec. 326; White v. Abernathy, 3 Cal. 426; Johnson v. Sepulbeda, 5 Cal. 151; Grewell v. Henderson, 7 Cal. 290; Nel- son V. Lemmon, 10 Cal. 50; Gray v. Hawes, 8 Cal. 566; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. In favor of a judgment rendered by a court of general jurisdiction, it will be pre- sumed, unless the contrary affirmatively appears, that a party to it was made a party to the action in some manner provided by law. Sharp v. Daugney, 33 Cal. 505. 10. Identity. A judgment was obtained against John P. Manrow, in New York, and an action was brought upon a judgment against John P. Man- row, in San Francisco. The identity of the per- son was presumed. Thompson v. Manrow, 1 Cal. 428; see also People v. Thompson, 28 Cal. 218. 11. Effect of judgment. If the court has juris- diction of the subject-matter and parties, its judg- ment, whether legal or illegal, proper or improper, is valid and binding, until reversed or set aside. Reynolds v. Harris, 14 Cal. 678; 76 Am. Dec. 459; Hahn v. Kellv, 34 Cal. 391; 94 Am. Dec. 742; Kohlman v. Wright, 6 Cal. 231. A judg- ment in favor of plaintiff against one of several defendants, in an action to set aside a deed as a cloud upon the title, is an adjudication that the title is in the plaintiff". Marshall v. Shafter, 32 Cal. 176. A judgment upon demurrer is only a bar to a subsequent action, when it determines the merits of the case. Robinson v. Howard, 5 Cal. 428. The judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, and as evidence, conclusive between the same par- ties, upon the same matter directly, in another court (Love v. Waltz, 7 Cal. 250) ; but, as a plea, it is no bar, where the complaint in the former suit is so defective that a judgment rendered thereon would be a nullity. Reynolds v. Harris, 9 Cal. 338. Where there is a misdescription of a note, and a want of specification of the name of the owner, or of any allegation that his name is unknown, in the schedule of an insolvent, the proceedings in insolvency are no bar to a suit on the note, even if the insolvent did not know that the plaintiff was the real creditor. Judson v. Atwill, 9 Cal. 477. The former judgment must not only be upon the same cause of action, but between the same parties. Uhlfelder v. Levy, 9 Cal. 607; Chase v. Swain, 9 Cal. 136. Plaintiff brought an action of replevin against the defend- ants to recover certain property, and obtained a judgment for its restitution and damages. De- fendants paid the damages, but did not restore the propertv. Plaintiff then brought an action of trover to recover the value. Defendants pleaded the former recovery as a bar. It was held, that the judgment in replevin did not constitute a bar to the action of trover, it not having been satis- fied. Nickerson v. California Stage Co., 10 Cal. 520. An action brought by an agent, in his own name, for a trespass, in taking coin from the agent, in which action the jury found that the coin belonged to the principal, and gave only nominal damages, is not a bar to an action by the principal for such coin. Pico v. Webster, 12 Cal. 140. A discharge in insolvency of a debt, is a discharge of a judgment on that debt, and the costs, rendered between the time of filing the petition and schedule and the time of discharge. Imlay v. Carpentier, 14 Cal. 175. A judgment iri an action to quiet title is a bar to subsetiuent litigation on the same subject-matter. Reed v. Calderwood, 32 Cal. 109. If two Mexican grants of land, made to different persons, are confirmed and surveyed so as to overlap each other in part, and the owner of one becomes a party to the pro- ceedings relating to the confirmation and survey 609 EFFECT OF JUDGMENT — RECITALS — COLLATERAL ATTACKS. §577 of the other, he is estopped from denyiriK that this grant was properly located. Seinple v. Wright, 32 Cal. 659. A judeiuent in an action to recover the possession of real property is, as to all mat- ters put in isoue and passed on in the action, con- clusive b(>t\veen the parties and their privies, and a liar in another action between the iiarties or their privies. Caperton v. Schmidt, 26 Cal. 490; 85 Aiu. Dec. 187. Hut the bar is limited to the riKhts of the parties as they e.xistcd at the time ■when the judprnieiit was rendered, and neither the parties nor their privies are ptecliided from show- ing, in a subsequent actinn, that their rights have been waived or extip^inished at a periud after the rendition of the judgment. Id. A judgment in favor of the plaintiff, in an aftion of ejectment, does not estop the defendant from maintaining an action for the specific perfininaiiee of a con- tract, made by the plaintiff before the commence- ment of the action of ejectment, to convey the same land to the defendant, if the contract was not set up in the answer as an equitable defense, and passed upon by the court. Hough v. Waters, 30 Cal. 309. In an equity case when all the proofs are in, and the case fully before the lower and the appellate court, the judgment of the lat- ter, if it passes upon the merits of the contro- versy so presented, is conclusive. Soule v. Dawes, 14 Cal. 249. If an action is brought to recover possession of a lot of personal property, wrong- fully taken and detained, and if the wrongful tak- ing was one continuous act, a judgment, in that action, will be a bar to a subsequent suit for the remainder of the property. Herriter v. Porter, 23 Cal. 385. In an action at law, the defendants, in their answer, set up a setoff to plaintiff's de- ' mand, and, on the trial of the action, the record showed that the court excluded all evidence of the demand sought to be set off, and gave judg- ment for plaintiff. Held, that the judgment in the action at law cannot be pleaded as an es- toppel in an action afterwards brousht by the de- fendants in a court of equity to enforce the set-off. Hobbs v. Duff, 23 Cal. 596. A judgment binds only parties and privies. Beckett v. Selover, 7 Cal. 228 ; 68 Am. Dec. 237. Except in some cases for specific purposes. Davidson v. Dallas, 8 Cal. 227. A purchaser of land, subsequently to a suit brought against his vendor to quiet title, and to notice of lis pendens iiled in the county recorder's office, is a mere volunteer, and is bound by the judgment. Gregory v. Haynes, 13 Cal. 594. One in the possession of land, who is neither a party nor a privy to a judgment for the re- covery of possession, is not bound by the judg- ment, nor can he be dispossessed by virtue of a writ issued upon it, nor is it evidence against him. Le Roy v. Rogers, 30 Cal. 229; 89 Am. Dec. 88. 12. Recitals in a judgment. The recitals in a several judgment, against one of a number of defendants, that in a former judgment in the same action, the name of this defendant was stricken out on plaintiff's motion, may be contra- dicted by the recitals in the former judgment. Leese v. Clarke, 28 Cal. 33. The recital, that summons was served, is conclusive of the fact in a collateral proceeding. Sharp v. Lumley, 34 Cal. 611. And, generally, as to the effects of recitals in judgments, see Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; and Sharp v. Daugney, 33 Cal. 505. 13. Void judgments. If it affirmatively ap- pears, upon the face of the record, that a per- sonal judgment of court of general jurisdiction was rendered without the court having acquired jurisdiction over the person of defendant, the judgment is void. Whitwell v. Barbier, 7 Cal. 54; Hahn v. Kelly, 34 Cal. ;^91; 94 Am. Dec. 742; Barrett v. Carnev, 33 Cal. 530; Alderson V. Bell, 9 Cal. 315; McMinn v. Whelan, 27 Cal. 309. Where a summons was served by a deputy sheriff, and returned with the following signature to the return, "Elijah T. Cole, D. S.," and judg- ment was rendered by default, it was held, that the judgment was null and void, for want of ju- risdiction. Rowlev V. Howard. 23 Cal. 401 ; see Hahn v. Kelly, 34 Cal. 391 ; 94 Am. Dec. 742. A judgment by default, entered by the clerk, where there has been no service of summons or 1 Fair.— 39 appearance, is utterly void. Glidden ▼. Packard, 2S Cal. 640. When the clerk has authority to enter judgment out of court by default, but ia the exnrci.se of his authority makes a mistake as to the amount, the judgment is only erroneous; but where he enters a kind of judgment which he has no authority to enter witliout the direction of the court, the judgment is void. Bond v. Pacheco, 30 Cal. 530: see also Stearns v. Aguirre, 7 Cal. 448. and Lewis v. Clarkiu, 18 Cal. 399. If a judgment is void for want of jurisdiction, it is not cured by the appearance of the defendant for the purpose of moving to set it asi:H. CODE COMMISSIONERS' NOTE. See § 414 of this code. If ihorf are several defendants, having no i-ommunit.v of intprest or property, a joint judtcmciit for nffirmative relief in tlieir favor is erroneous. Patre v. Fowler, 39 Cal. 412; 2 Am. Kep. 4G2. In Stearns v. ARuirrc, Cnl. 182, it was held that, in an action brought jointly aRainst two defendants, on a joint and several obligation, the entry of final judgment on default against one of the defendants dis- charged the other. In cases of joint and several contracts, the plaintilT may elect whether he will sue the defendants severally or jointly; but plain- tiff having elected to treat his demand as joint for the purpose of the action, he must be gov- erned by the same rules which would have ap- plied if his contract originally had been joint, and not joint and several; and it is clearly error to enter several judgments against the defend- ants. But see Lewis v. Clarkin, 18 Cal. 399. ^Vhe^e two persons are sued upon a joint con- tract, judgment may be had in favor of the plain- tilT against one of the defendants, and in favor of one of the defendants against the plaintiff. Rowe V. Chandler, 1 Cal. 167. Where two or more defendants are not liable jointly, a joint judgment against both cannot be sustained; so held in an action by a lessor against two sub- tenants of the lessee, when it appeared that the subtenants did not occupy any portion of the premises jointly. Pierce v. Minlurn, 1 Cal. 470. A judgment in an action against the sureties on an oflicial bond, for a defalcation of the princi- pal, should first determine the amount of the defalcation, and then proceed with a separate judgment against each of the sureties for the full amount for which he made himself liable in the bond, and costs, and with a provision that each judgment shall be satisfied by ihe collection or payment of the amount of the defalcation and costs. People v. Rooney. 29 Cal. 642; People v. Edwards, 9 Cal. 286. Where an action is brousht by one of several persons claiming title from a common source, in his own behalf and in behalf of all others interested in the same manner as himself, on the ground of fraud, to set aside a deed executed to others by the same grantor, under whom plaintiff claims, the parties named in the complaint, for whose benefit the action is brought, are entitled to the benefit of the judg- ment declaring the deed fraudulent. Ilurlbutt v. Butenop, 27 Cal. 54. Where a decision is made in an equitable action on any particular subject- matter, the rights of all persons whose interests are immediately connected with that decision, and affected by it, should be provided for. McPher- son V. Parker, 30 Cal. 455; 89 Am. Dec. 129. Where three persons are sued on a promissory note, given by one of the parties in the name of all, as partners, and the evidence fails to show tire partnership, or the authority of the party making the note, and one of the parties is non- suited, a judgment taken against the other two was held valid. Stoddart v. Van Dyke, 12 Cal. 438. In a suit on an account, against "Randall & Inos," partners, the former only being served with process, a joint judgment was rendered against both. Held, void as against the party not served. Inos v. Winspear, 18 Cal. 397. Plain- tiff sells goods to C. on his individual account. Subsequently, C. directs plaintiff to charge the goods to the joint account of C. and J., which is done. Plaintiff sues C. and J. jointly. Proven, that C. had no authority to bind J. Held, that, although J. is not liable, judirment may be ren- dered against C. ; that our statute has modified the common-law rule, that, in a suit against sev- eral joint debtors, plaintilf must recover against all or none, so far, at least, as to permit judg- ment against a portion of the defendants, wher- ever the contract purports on its face to be the contract of all the parties sued, and it turns out in proof that a portion onlv are liable. Lewis V. Clarkin, 18 Cal. 399. In" a suit against two, §§579,580 JUDGMENT, IN GENERAL. 612 guarantors of a note bars the action against the others. The entire cause of action is merged in the judgment. Brady v. Reynolds, 13 Cal. 31. on a joint assessment for taxes, judgment may be rendered against one of the defendants, if the other is not liable. People v. Frisbie, 18 Cal. 402. A judgment against one or more joint § 579. Judgment may be against one party and action proceed as to others. In an action against several defendants, the court may, in its dis- cretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper. appear or answer, a finding that he was duly served is sufficient to show jurisdic- Striking out party. Ante, § 473. Fresh parties, bringing in. Ante, § 389. Service on one defendant out of several, effect of. Ante. § 414. „ ^.^ Joint debtors, proceedings against. Post, §§ 989 et seq. . Joining persons severally liable on same instru- ment. Ante, § 383. Legislation § 579. Enacted March 11, 1872; re-enactment of Practice Act, § 146 (New York Code, § 274). Judgment against one of several defend- ants. In an action against more than one defendant, the court may render judgment against only one, when a several judgment is proper. Madary v. Fresno, 20 Cal. App. 91; 128 Pac. 340. The court is authorized to render judgment against one defendant, without determining the liability of the others. Kelley v. Plover, 103 Cal. 35; 36 Pac. 1020. The court or jury may find against one or more of several defendants, but there must be a finding or verdict for or against each defendant. McMahon v. Hetch-Hetchy etc. By. Co., 2 Cal. App. 400; 84 Pac. 350. In an action to determine title, the court may order a continuance as to one defendant, direct the trial to proceed as to the other defendants, on the issues involved, and render a several judg- ment thereon. Bell v. Staacke, 159 Cal. 193; 115 Pac. 221. In an action on a joint and several contract, the court may proceed with the trial against a single de- fendant, who has voluntarily appeared, and render judgment against him. Bell v. Adams, 150 Cal. 772; 90 Pac. 118. In an action for personal injuries, against two defendants, jointly charged with negli- gence, a several judgment by default may be rendered against one defendant and the action proceed against the other. Cole v. Roebling Construction Co., 156 Cal. 443; 105 Pac. 255. Where a defendant fails to tion and to sustain the judgment. Lick V. Stockdale, 18 Cal. 219. A several judg- ment may be rendered against one of two defendants sued upon a joint contract, who was duly served, even though the other was not served (Kelly v. Bandini, 50 Cal. 530) ; and several judgments may be en- tered, and at different times, against several defendants occupying different por- tions of property sued for in ejectment. Lick V. Stockdale, 18 Cal. 219. Joint judgment, where only one defend- ant served. A joint judgment against several defendants, as copartners, cannot be rendered, where oulv one was served. Estell V. Chenery, 3 Cal. 467. Verdict and judgment vacated as to one defendant. A verdict against several per- sons sued jointly, found erroneous as to one of them, may be vacated as to that one, and continue in force and effect as to the remaining defendants. Clark v. Torehiana, 19 Cal. App. 786; 127 Pac. 831. Validity of judgment. A judgment does not depend upon the clerk performing his duty in making up the judgment roll or in preserving the papers. Lick v. Stockdale, 18 Cal. 219. Who may be joined as defendants. See note ante, § 379. CODE COMMISSIONERS' NOTE. Where some of the defendants, partners, are not served with summons, tlie plaintiff may proceed against those served. Ingraham v. Gildemeester, 2 Cal. 88; Hirschfield v. Franklin, 6 Cal. 607. A joint judg- ment in ejectment, against defendants severally in possession of separate parcels of the land sued for, is erroneous. Leese v. Clark, 28 Cal. 26. In an action upon a joint or several bond, where all the obligors are made parties, the plaintiff may go to trial, if he elect to do so, before all the defendants are served. People v. Evans, 29 Cal. 429. § 580. The relief to be awarded to the plaintiff. 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 consistent with the case made by the complaint and embraced within the issue. cases it is extended to granting relief simi- lar to that granted under a prayer for general relief in chancery courts (.lohn- son v. Polhemus, 99 Cal. 240; 33 Pac. 908); and the section is but a concise statement of the rule observed uj>on the subject of relief in courts of equity. Mock v. Santa Rosa, 126 Cal. 330; 58 Pac. 826. The Legislation 8 580. Enacted March 11, 1873; based on Practice .\ct, § 147 (New York Code, § 27.5), substituting "cannot" for "shall not." Construction of section. The relief pro- vided by this section is confined, in case of default, to that demanded in the com- plaint, as was tha rule under a prayer for special relief in equity; while in other 613 EQUITABLE RELIEF — MEASURE OF RELIEF. 580 court may, under this section, grant addi- tional relief under the original complaint, without an ameiulment thereof for that jiurpose alone (Kent v. Williams, 146 Cal. S; 79 Pae. 527); and relief may be granted, within the issues of the complaint, even though not specifically prayed for. Secu- rity Loan etc. Co. v. Boston etc. Fruit Co., 126 Cal. 418; 58 Pac. 941; 59 Pac. 296. A judgment for more relief than is prayed for is not void as to the excess, and it cannot be attacked in collateral proceed- ings, although there is no prayer for gen- eral relief. Cohen v. Cohen, 150 Cal. 99; 11 Ann. Cas. 520; 88 Pac. 267. Equitable relief. The circumstance that a court of law, as well as a court of equity, can hear and determine any issue of fact presented for adjudication in a proceed- ing properly before the court, has no weight in determining whether or not, upon a particular state of facts, the rem- edy is legal or equitable. Angus v. Craven, 132 Cal. 691; 64 Pac. 1091. Where a com- plaint praying for legal relief states a cause of action entitling the plaiutitf to equitable relief, the court may, on the trial, permit the prayer to be so amended as to ask for the appropriate equitable relief. Walsh v. McKeen, 75 Cal. 519; 17 Pac. 673; and see Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423. A judgment for the value of personal property, rather than for its possession, is proper, where the action is for a rescission of the contract, on the ground of false re[)resentation. Stewart v. Ilollingsworth, 129 Cal. 177; 61 Pac. 936. Rescission is only one of the remedies in case of fraud; and where real or personal property is fraudulently ob- tained, the most common and familiar re- lief granted by a court of equity is to convert the party guilty of the fraud into a trustee. More v. More, 133 Cal. 489; 65 Pae. 1044; Field v. Austin, 131 Cal. 379; 63 Pac. 692. The correction of a defect in a written instrument, not specifically pleaded, may be decreed by the court. Poledori v. Newman, 116 Cal. 375; 48 Pac. 325. Where the facts alleged and found, independently of an allegation of and a failure to find upon fraud, show a mistake in the description of property purchased, the plaintiff is entitled to a reformation of the deed to conform to the intention of the parties. Hoffman v. Kirby, 136 Cal. 26; 68 Pac. 321. A judgment in an action for the specific performance of a contract grants more relief than is authorized, where it directs specific performance by the defendant, and not by the plaintiff, and enjoins the defendant from convey- ing property and from working the same, without reference to any performance of the contract by the plaintiff. Ellis v. Rade- macher, 125 Cal. 556; 58 Pac. 178. The amount of recoupment to which the plain- tiff may in future be entitled cannot be determined by the judgment in an action, the esi)ecial object of which is to cancel a mortgage, and permitting only of the re- lief that the deed be reformed so as to exfiress the real intention of the parties with reference to the property to be in- cluded therein. iIoft"man v. Kirbv, 136 Cal. 26; 68 Pac. 321. A judgment for the transfer and delivery of securities is a substantial compliance with this section, where the complaiut set forth all the facts concerning the same, even though the formal prayer of the comi)laint omitte.l all mention thereof. Security Loan etc. Co. V. Boston etc. Fruit Co., 126 Cal. 418; 58 Pac. 941; 59 Pac. 296. Where the abatement of a nuisance was prayed for in the complaint, an injunction against the continuance of the nuisance is proper ann his own motion, dismiss the ai-tion, wiierc the defendant, by his answer, claims affirma- tive relief (Robinson v. Placerville etc. R. R. Co., 65 Cal. 264; 3 Pac. 878); nor, where the defendant, in his answer, avers matters growing out of the matters set forth in the complaint upon which he seeks affirmative relief, can the plaintiff dismiss the action upon his own motion, without the consent of the defcnear at the trial, except upon proof that the ])laintiff has had five days' notice of such trial, as prescribed in § 594, post. Estate of Dean, 149 Cal. 487; 87 Pac. 13. Whore the plaintiff fails to apficar at the time set for trial, a .iudf^mont of dismissal of the action for want of prosecution is not an adjudication of the cause upon its merits, and is not a bar to another action for the same cause: not having the ele- ments to constitute a bar to another action, it has not the elements to sup- port a plea in abatement. Pyle v. Piercy, 122 Cal.3S.3; 55 Pac. 141. Nonsuit may be granted in what classes of cases. The court has authority to ^rant a judgment of nonsuit, only in certain cases specified, llanna v. De Garmo, 140 Cal. 172; 73 Pac. 830. The rules of non- suit are the same, whether the trial is by the court or bv a jury. Freese v. Hibernia Sav. & L. Soc"., 139 Cal. 392; 73 Pac. 172; Goldstone v. Merchants' lee etc. Co., 123 Cal. 625; 56 Pac. 776; Marrou v. Marron, 19 Cal. App. 326; 125 Pac. 914. In de- termining a motion for a nonsuit upon the close of contestant's case, in a will contest, the same rules apply as in civil cases. Estate of Dalv, 15 Cal. App. 329; 114 Pac. 787. Nonsuit, granted at what stage of the action. At common law, it was the right of the plaintiff to take a nonsuit at any time before the jury retired, and this sec- tion has not altered the rule. Planeock Ditch Co. V. Bradford, 13 Cal. 637. This section does not give an absolute right to a nonsuit after the case has been submitted and the jury has retired, but the right does exist at any time before such sub- mission and retirement. Browm v. Harter, 18 Cal. 76; Heinlin v. Castro, 22 Cal. 100. A nonsuit can properly be granted after the evidence on both sides is closed (Tou- louse v. Pare, 103 Cal. 251; 37 Pac. 146; Geary v. Simmons, 39 Cal. 224; Vander- ford v. Foster, 65 Cal. 49; 2 Pac. 736); but this section does not purport to warrant a nonsuit, except upon a motion of the de- fendant wheu, upon the trial, the plaintiff fails to prove a sufficient case. Saul v. Moscone, 16 Cal. A[iii. 506; 118 Pac. 452. Nonsuit for failure to prove cause of action. Where the plaintiff introduces proof enough to make out a prima facie case under his pleading, a motion for a nonsuit, at the close of his case, should be denied. Estate of Daly, 15 Cal. App. 329; 114 Pac. 787. The defendant's motion for a nonsuit is properly denied, where the ])laintiff makes out a prima facie case (Creditors' Union v. Lundy, 16 Cal. App. 567; 117 Pac. 624); and also where there is any evidence of a substantial nature, supporting the cause of action alleged in the complaint. McE'wen v. Occidental Life Ins. Co., 20 Cal. App. 477; 129 Pac. 598. The case is properly dismissed, where the plaintiff refuses to offer any testimony in support of his complaint (Stewart v. Stew- art, 156 Cal. 651; 105 Pac. 955); and non- suit is jiroperly granted, where no evidence is introduced by him, tending to prove a particular issue material to the case. Sepulveda v. Sepulve.la, 128 Cal. 661; 61 Pac. 272. In an action upon a fire-insur- ance policy, where no breach of the con- tract evidenced by the policy existed at the time of suit brought, and where the plaintiff introduces the policy in eviilence at the trial, the court errs in refusing a motion for a nonsuit at the conclusion of the jdaintiff's testimonv. Irwin v. Insur- ance Co., 16 Cal. App. "l43; 116 Pac. 291. In an action by a corporation to recover money alleged to have been misappropri- ated by its president, a nonsuit is jiroperly granted where the misai)proi)riation is not proved. Hercules Oil etc. Co. v. Ilocknell, 5 Cal. App. 702; 91 Pac. 341. A motion for a nonsuit should be granted for failure of proof of cause of action alleged, and such motion is not waived by the subse- quent introduction of evidence by the de- fendant, which does not change the status of the case, nor supply any defect in the plaintiff's case, as pointed out on the mo- tion for nonsuit. Elmore v. Elmore, 114 Cal. 516; 46 Pac. 458; Smith v. Compton, 6 Cal. 24; Winans v. Hardenbergh, 8 Cal. 291; Abbey Homestead Ass'n v. Willard, 48 Cal. 614; Iliggins v. Eagsdale, 83 Cal. 219; 23 Pac. 316. A nonsuit, in an action for negligence, can be granted only when the facts are undisputed, and are such that but one conclusion can be drawn from them; and the question is one of law for the court. Hanley v. California Bridge etc. Co., 127 Cal. 232; 47 L. R. A. 597; 59 Pac. 577. Where the plaintiff, in an action for personal injuries, was, as a matter of law, guilty of contributor}' negligence, the court should grant a nonsuit (Pavne v. Oakland Traction Co., 15 Cal. App. 127; 113 Pac. 1074); but where the plaintiff's evidence shows a violation of the law of the road, and he is not chargeable, as a matter of law, with contributory negli- gence, a motion for a nonsuit, at the close of his evidence, is properly denied. Mc- Kernan v. Los Angeles Gas etc. Co., 16 Cal. App. 280; 116 Pac. 677. Upon a con- test of a will and codicil, executed at dif- ferent dates, there may be a nonsuit as to either branch of the case, where the evidence is insufficient, and the party in whose favor it is rendered is entitled to a judgment thereon. Estate of Eicks, 160 Cal. 450; 117 Pac. 532. Error in admit- ting evidence cannot be reviewed on a mo- tion for a nonsuit; and where the evidence admitted substantially tends to prove all the facts essential to the plaintiff's cause of action, the nonsuit is properly denied (O'Connor v. Hooper, 102 Cal. 528; 36 Pac. 939) ; and a nonsuit is also properly denied, §581 JUDGMENT, IN GENERAL. 622 where the defendant expressly admits that the claim sued on was presented to and rejected by him, and there is evidence sufficient to justify and sustain the demand (Warren v. McGill, 103 Cal. 153; 37 Pac. 144) ; and a nonsuit should be denied where the evidence, and the presumptions reason- ably arising therefrom, are legally suffi- cient to prove the material allegations of the complaint (Goldstoue v. Merchants' Ice etc. Co., 123 Cal. 625; 56 Pac. 776; De Eo v. Cordes, 4 Cal. 117; McKee v. Greene, 31 Cal. 41S; Alvarado v. De Cells, 54 Cal. 588; Felton v. Millard, 81 Cal. 540; 21 Pac. 533; 22 Pac. 750; Higgins v. Ragsdale, 83 Cal. 219; 23 Pac. 316); and also where there is any evidence to sustain the plaintiff's case, without passing upon the sufficiency of the evidence (Zilmer v. Ge- richten. 111 Cal. 73; 43 Pac. 408; Felton v. Millard, 81 Cal. 540; 21 Pac. 533; 22 Pac. 750) ; and also where the plaintiff makes out a prima facie case, and there is no material variance between the averments and the proofs. Chapman v. Neary, 115 Cal. 79; 46 Pac. 867. An order granting a nonsuit and dismissing the action, after the cause was submitted upon briefs, but granted before the time for present- ing the reply brief expired, is harmless, where, upon the case made, the plaintiff was not entitled to recover. Vincent v. Pacific Grove, 102 Cal. 405; 36 Pac. 773. The court may dismiss the action as to one defendant, where no case is made against him, notwithstanding the action proceeded as between the plaintiff and the other defendants. Eowe v. Simmons, 113 Cal. 688; 45 Pac. 983. Nonsuit where case is insufficient for jury. Ordinarily, a nonsuit can be granted only in the cases specified by law, and upon motion, but error in taking from the jury the issue of undue influence, in a will contest, is without prejudice, where the contestant totally failed to make out a case, and the defect in his case was incurable. Estate of Higgins, 156 Cal. 257; 104 Pac. 6. To justify the submis- sion of a question of fact to the jury, the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged: it must be such that a rational mind can reasonably draw the conclusion that tlie fact exists. Janin v. London etc. Bank, 92 Cal. 14; 27 Am. St. Eep. 82; 14 L. E. A. 320; 27 Pac. 1100. A motion for a nonsuit is properly de- nied, where the evidence entitles the plain- tiff to go to the jury on an issue stated (Gilliam v. Brown, f26 Cal. 160; 58 Pac. 466) ; and also where there is sufficient testimony to justify the court in submit- ting the facts to the jury. Anderson v. Hinshaw, 110 Cal. 682; 43 Pac. 389. Where it does not appear that the plaintiff failed to prove a sufficient case for the jury, nor that the defendant moved for a judgment of nonsuit, a judgment for the defendant cannot be treated as a judgment of dismissal, under the fifth subdivision of this section. Hancock v. Lopez, 53 Cal. 362. Where the evidence adduced by the plaintiff is not sufficient to justify a ver- dict in his favor, it is proper for the court, in effect, to grant a nonsuit by re- fusing to submit special issues to the jury, and to order them discharged. Estate of Morey, 147 Cal. 495; 82 Pac. 57. A motion for a nonsuit should be granted, where a verdict in favor of the plaintiff would be set aside for want of evidence to support it, and, in the absence of a jury, where the evidence is insufficient to support a judgment for the plaintiff (Downing v. Murray, 113 Cal. 455; 45 Pac. 869); and whenever the evidence intro- duced by the plaintiff so conclusively es- tablishes a defense as that the court might properly grant a new trial in case of a verdict in his favor upon like evidence the court may direct a judgment of nonsuit (Goldstone v. Merchants' Ice etc. Co., 123 Cal. 625; 56 Pac. 776; McQuilken v. Cen- tral Pacific R. E. Co., 50 Cal. 7); but not where there is any substantial evidence, which, with the aid of all legitimate infer- ences favorable to the plaintiff, would support a verdict or finding that the material allegations of the complaint are true (Burr v. United Eailroads, 163 Cal. 663; 126 Pac. 873); nor where the plain- tiff's evidence would be held sufficient, on appeal, to support a judgment upon a ver- dict in his favor. Freese v. Hibernia Sav. & L. Soc, 139 Cal. 392; 73 Pac. 172. Evidence, how considered on motion for nonsuit. The motion for a nonsuit admits the truth of the plaintiff's evidence, and every inference of fact that can be legiti- mately drawn therefrom; and, upon such motion, the evidence should be interpreted most strongly against the defendant. Han- lev V. California Bridge etc. Co., 127 Cal. 232; 47 L. E. A. 597; 59 Pac. 577; Gold- stone V. Merchants' Ice etc. Co., 123 Cal. 625; 56 Pac. 776; Estate of Ricks, 160 Cal. 450; 117 Pac. 532; Estate of Daly, 15 Cal. App. 329; 114 Pac. 787; Larson v. Larson, 15 Cal. App. 531; 115 Pac. 340; Christenson Lumber Co. v. Buckley, 17 Cal. App. 37; 118 Pac. 466; Marron v. Marron, 19 Cal. App. 326; 125 Pac. 914. A motion for a nonsuit should never be granted, where there is a conflict in the eAddence. Pacific Mut. Life Ins. Co. v. Fisher, 109 Cal. 566; 42 Pac. 154. A con- flict of evidence as to a fact is a question for the jury: it should not be determined by the court as a matter of law, on mo- tion for a nonsuit. Burr v. United Rail- roads, 163 Cal. 663; 126 Pac. 873. A motion for a nonsuit should be denied, where there is any substantial evidence tending to prove the plaintiff's case, with- out passing upon the sufficiency of such 623 NONSUIT — REQUISITES OF MOTION P^OR, ETC. §581 evidence. Marron v. Marron, 19 Cal. App. 326; 125 Pae. 914; Larson v. Larson, 15 Cal. App. 534; 115 Pac. 340. A motion for a nonsuit, directed "to all the causes of action mentioned in the complaint," is not tenable, unless, as to all, there is a failure of evidence. Pacific Vinegar etc. Works V. Smith, 152 Cal. 507; 93 Pac. 85. Where a motion for a nonsuit for want of testimony upon any material fact has been erroneously overruled, and the defendant proceeds and supplies the defect by evi- dence which he himself introduces, the error is waived. Lowe v. San Francisco etc. Ey. Co., 154 ('al. 573; 98 Pac. 678. Nature and effect of motion for nonsuit. A motion for a nonsuit admits the truth of all evidence in favor of the plaintiff, together with every inference or presump- tion legitimately deducible therefrom (Lar- son V. Larson, 15 Cal. App. 531; 115 Pac. 340; Marron v. Marron, 19 Cal. App. 326; 125 Pac. 914); it is equivalent to a de- murrer to the evidence, or an objection that, admitting all of the proved facts to be true, they do not in legal effect oper- ate in favor of the plaintiff, or entitle him to the relief asked for by him. Estate of Daly, 15 Cal. App. 329; 114 Pac. 787. A motion for a nonsuit, to prevent the sub- mission of a case to the jury, presents a question of law for determination by the court (Estate of Daly, 15 Cal. App. 329; 114 Pac. 787) ; and in a statement on a motion for a new trial after nonsuit, the decision should be specified as an error of law. Donahue v. Gallavan, 43 Cal. 573; McCreery v. Everding, 44 Cal. 284; Tou- louse V. Pare, 103 Cal. 251; 37 Pac. 146. A nonsuit as to a certain defendant in a consolidated action does not affect the de- fault of a party, previously entered, nor the right to judgment authorized by such default. Kennedy & Shaw Lumber Co. v. Dusenbery, 116 Cal. 124; 47 Pac. 1008. Question of variance, how raised. Vari- ance may be taken advantage of either by objecting to the admissibility of the evi- dence or by motion for a nonsuit; and the defendant is not precluded from moving for a nonsuit on the ground of variance by reason of his failure to object to the admifsibilitv of the evidence. Elmore v. Elmore, 114^ Cal. 516; 46 Pac. 458; Farmer V. Cram, 7 Cal. 135; Tomlinson v. Monrofe, 41 Cal. 94; Johnsbn v. Moss, 45 Cal. 515. The motion for nonsuit is the proper method by which to raise the question of variance between the pleadings and the proof. Elmore v. Elmore, 114 Cal. 516; 46 Pac. 458. Insufficiency of complaint no ground for nonsuit. It is not a ground for nonsuit, that the complaint does not state a cause of action. Keefe v. Keefe, 19 Cal. App. 310; 125 Pae. 929. Nonsuit before referee. A plaintiff can voluntarily submit to a nonsuit before a referee, where no counterclaim is set up by the defendant. Plant v. Fleming, 20 Cal. 92. Costs in case of nonsuit. The court is justified in ordering the jdaintiff to i>ay jury fees, where he is nonf>uite'ant of prosecution, and the power to dismiss an action on the ground of un- necessary delay in serving summons is still in the discretion of the court, subject to reversal for abuse of such discretion. Fer- ris V. Wood, 144 Cal. 426; 77 Pac. 1037; and see First Nat. Bank v. Nason, 115 Cal. 626; 47 Pac. 595; Stanlev v. Gillen, 119 Cal. 176; 51 Pac. 183. The seventh subdivision is not to be construed as mean- ing that the plaintiff may have the full time limited thereby in all cases: it is still discretionary with the court to dismiss, even though summons is issued and served wdthin the time limited. Stanley v. Gillen, 119 Cal. 176; 51 Pac. 183; and see First Nat. Bank v. Nason, 115 Cal. 626; 47 Pac. 595. The discretion of the court in dis- missing an action on any ground, other than where the summons is not served within three years, in which case the court is without discretion, is not a capricious or arbitrar}^ but an impartial, discretion, guided and controlled, in its exercise, by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat, the ends of substantial justice. Bailev v. Taaffe, 29 Cal. 422; First Nat. Bank v. Nason, 115 Cal. 626; 47 Pac. 595; Ferris v. Wood, 144 Cal. 426; 77 Pac. 1037. A delay in serving the sum- mons, reasonably accounted for as an excuse, is not ground for dismissing the action for unreasonable delay in obtaining service. Ferris v. Wood. 144 Cal. 426; 77 Pac. 1037. The court has power to dis- miss, where there has been an inexcusable X Fair. — 40 delay in serving the summons, although service is had within three years after the filing of the complaint (Castro v. San Francisco, 4 Cal. Unrep. 500; 35 Pac. 1035); and where the plaintift", in a con- test for the {lurchase of state school-land, fails to serve and return the summons for the period of three years after the com- mencement of the action, the court has power, of its own motion, to dismiss the contest. Darlington v. Butler, 3 Cal. App. 448; 86 Pac. 194. Whether there has been excusable delay within the term of three years, is a question within the discretion of the court: each case must be determined upon its own peculiar circumstances. Cas- tro V. San Francisco, 4 Cal. Unrep. 500; 35 Pac. 1035; and see Kreiss v. Hotaling, 99 Cal. 383; 33 Pac. 1125; Murray v. Glee- son, 100 Cal. 511; 35 Pac. 88. The suc- cessor in interest of a deceased defendant, upon whom summons was served as suc- cessor in interest of such defendant, has such an interest as authorizes him to make a motion to set aside a void decree en- tered upon such service, and for dismissal of the action for want of prosecution. Fanning v. Foley, 99 Cal. 336; 33 Pac. 1098. Where the record affirmatively shows that the summons was regularly served by publication within three years, jurisdictional recitals in the judgment must be taken, on collateral attack, as true, unless the record affirmatively shows that the facts upon which they are based are insufficient to sustain them. Sacra- mento Bank v. Montgomery, 146 Cal. 745; 81 Pac. 138. The original words, in the seventh subdivision, "and served, and re- turn thereon made," referred to the sum- mons, and those of the amendment of 1895,. "and all such actions shall be in like manner dismissed, unless the summons shall be served and return thereon made," refer to the summons and also the action. Sharpstein v. Eells, 132 Cal. 507; 64 Pac. 1080. Dismissal for want of prosecution. The trial court has power to dismiss an action for want of prosecution (Pardy v. Mont- gomery, 77 Cal. 326; 19 Pac. 530), and to dismiss a pending action, on the ground that it has not been diligently prosecuted (Gray v. Times-Mirror Co., 11 Cal. App. 155; 104 Pac. 481); and where there is no counter-showing, except that of the plead- ings, it cannot be said, on appeal, that the court abused its discretion in ted to be dismissed by the plaintiff, where affirmative relief is sought bv the answer. Clark V. Hundley, 65 Cal. 96; 3 Pac. 131. Where the plaintiff moves for a dismissal at his costs, and the motion is resisted by the defendant and denied by the court, 581 JUDGMENT, IN GENERAL. 628 mandamus will not issue, commanding the judge to enter a judgment of dismissal, when the act to be done is judicial and discretionary. People v. Pratt, 28 Cal. 166; 87 Am. Dec. 110; People v. Sexton, 24 Cal. 79. Prohibition. Prohibition is the appro- priate remedy to prevent a stay of pro- ceedings, where the court refuses to order the entry of dismissal until the plaintiff shall have paid the costs. Hopkins v. Su- perior Court, 136 Cal. 552; 69 Pae. 299. Prohibition will issue to restrain the court from proceeding with an action, where the plaintiff has dismissed it, and the court subsequently sets aside the order of dis- missal and threatens further proceedings (Kaufman v. Superior Court, 115 Cal. 152; 46 Pac. 904) ; and prohibition will issue to restrain the court from proceeding with the trial of a cause, three years after the subsequent commencement of the action, where a motion to dismiss had been made. Modoc Land etc. Co. v. Superior Court, 128 Cal. 255; 60 Pac. 848. New trial. The question presented on a motion for a nonsuit is a question of law, and in a statement on a motion for a new trial, after nonsuit, the decision should be specified as an error of law. Donahue v. Gallavan, 43 Cal. 573; Mc- Creery v. Everding, 44 Cal. 284; Toulouse V. Pare, 103 Cal. 251; 37 Pac. 146. Appeal. Where an action is improperly dismissed by the plaintiff, the defendant's remedy is by appeal from the judgment, and not by motion to set it aside. Higgins V. Mahoney, 50 Cal. 444; Westbay v. Gray, 116 Cal. 660; 48 Pac. 800. The appellate court will not go beyond the inquiry, whether or not the discretion of the trial court in dismissing the action has been abused. Hassey v. South San Francisco Homestead etc. Ass'n, 102 Cal. 611; 36 Pac. 945; People v. Jeflferds, 126 Cal. 298; 58 Pac. 704; Nicol v. San Francisco, 130 Cal. 288; 62 Pac. 513; Martin v. San Fran- cisco, 131 Cal. 575; 63 Pac. 913; Kennedy V. Mulligan, 136 Cal. 556; 69 Pac. 291; and see Grigsby v. Napa County, 36 Cal. 585; 95 Am. Dec. 213; Chipman v. Hibberd, 47 Cal. 638; Lander v. Flemming, 47 Cal. 614; Simmons v. Keller, 50 Cal. 38; Kornahrens V. His Creditors, 64 Cal. 492; 3 Pac. 126; Saville v. Frisbie, 70 Cal. 87; 11 Pac. 502; Pardy v. Montgomery, 77 Cal. 326; 19 Pac. 530; Kubli v. Hawkett, 89 Cal. 638; 27 Pac. 57. The order granting a nonsuit, un- less excepted to and assigned as error, cannot be assailed on appeal (Toulouse v. Pare, 103 Cal. 251; 37 Pac. 146; Hanna v, De Garmo, 140 Cal. 172; 73 Pac. 830); and the bill of exceptions or statement must affirmatively show that the ruling as- signed as error actually took place at the trial and was excepted to. Hanna v. De Garmo, 140 Cal. 172; 73 Pac. 830; Flashner V. Waldron, 86 Cal. 211; 24 Pac. 1063; Warner v. Darrow, 91 Cal. 309; 27 Pac. 737; Malone v. Beardsley, 92 Cal. 150; 28 Pac. 218; Craig v. Hesperia Land etc. Co., 107 Cal. 675; 40 Pac. 1057. Where prohi- bition to a justice's court is denied, the parties cannot, by stipulation, limit the inquiry on appeal to the moot question, not arising upon the record, whether this sec- tion applies to justice's courts. Hubbard v. Justices' Court, 5 Cal. App. 90; 89 Pac. 865. It must be presumed, on appeal, in favor of a judgment of nonsuit, that a motion therefor was regularly maile and granted bv the court. Hanna v. De Garmo, 140 Cal. 172; 73 Pac. 830. Dismissal for failure to make return of summons. See note post, § 5Sla. Questions on appeal as to dismissals and nonsuits. See note post, § 963. Compulsory granting of nonsuit. See note 24 Am. Dec. 62 0. Effect of nonsuit as res adjudicata. See note 49 Am. St. Rep. 831. What constitutes "final submission" of cause so as to preclude voluntary dismissal. See note 4 Ann. Cas. 510. Eight of complainant to dismiss bill in equity without order of court. See note 5 Ann. Cas. 850. Dismissal of action by agreement as res adju- dicata. See note 13 Ann. Cas. 655. Dismissal of action by co-plaintiff. See note 20 Ann. Cas. 1005. Eight of plaintiff to take voluntary nonsuit or dismissal after verdict or finding but before judg- ment. See note Ann. Cas. 1913jJ, 525. Power of court to protect attorney who has taken case on contingent fee, against voluntary dismissal by claimant without his consent. See note 14 L. K. A. (N. S. ) 1095. Jurisdiction of court to enter final judgment upon dismissal. See note 26 L. R. A. (N. S.) 914. Eight of plaintiff to take a nonsuit where the defendant has interposed a counterclaim entitling him to aifirmative relief, where right to such dis- missal is not defined or denied by statute. See note 15 L. R. A. (N. S.) 340. CODE COMMISSIONEES' NOTE. 1. By the plaintift'. Plaintiff may talje a nonsuit at any time before the jury retires, if a counterclaim has not been made. Hancock Ditch Co. v. Brad- ford, 13 Cal. 637; Brown v. Harter, 18 Cal. 76. Plaintifl' has not the absolute right to dismiss or take a nonsuit after the case has been finally sub- mitted and the jury has retired. Brown v. Harter, 18 Cal. 76. Xor has the court any authority to enter an order of dismissal without the consent of defendant. Heinlin v. Castro, 22 Cal. 101. C, one of four defendants in ejectment, moved to transfer the action to a United States court, on the ground of his alienage, and an order was made, staying all proceedings until the motion could be heard. Before the hearing of the mo- tion, plaintiff' dismissed the action as to C. and one other defendant, and took judgment against the other two, who had made default. C. after- wards insisted upon his motion, and filed affi- davits tending to show that the defaulting defendants were occupying the premises as his tenants, and were colluding with the plaintiff. The motion was denied, and C. having appealed from that order and from the judgment, it was held that the motion was properly denied. Reed V. Calderwood, 22 Cal. 463. In an action of ejectment against several defendants, the plain- tiff may, before trial, dismiss the action as to some of the defendants, and proceed against the others. Id.; Dimick v. Deringer, 32 Cal. 488. In an action upon a joint and several bond, where all the obligors are made defendants, the plain- tiff may go to trial, if he elects so to do, before all the defendants are served, and may dismiss as to some of the defendants, and take judgment 629 DISMISSAL — NONSUIT. §581 against the others. People ▼. Evani. 29 Cal. 429. Tne defendant, in his answer, set up u (.-ro.ssi de- mand, and proved affirmative relief. Afterwards A stipulatiiin, sipned by the atlurneys of tlie par- ties, was tiled, whereby it was provided that upon the trial of the cause an account might be taken of the matter thus set up; that the stipulation should be rej^arded as a compromise of the counterclaim; and that the counierclaim should be deemed stricken from the answer. It was held, ih.tt, on this state of the record, the clerk was not required nor authorized by § 1-18 of the Practice Act, in the absence of any direction from the court or counsel of the defendant, to «nlcr an order upon request of plaintiff dismissing the action. The construction of the pleadings and stipulation, and determination of the rights of the p.Trties with respect to the counterclaim under them, required the exercise of judicial functions. People v. Loewy, 29 Cal. 2G4. Plain- tiff is not bound to tender costs; the provisions subject him onlv to the liability. Hancock Ditch Co. V. Bradford,' l:i Cal. 6:37. 2. Upon written consent. If a plaintiff, who has appeared by attorney, afterwards stipulates in writing that the action may be dismissed, the court should not make the order of dismissal, unless the attorney of record assents to the same. Board of Commissioners v. Younger, 29 Cal. 147; 87 Am. Dec. 164. 3. When the plaintiff fails to appear. When the plaintiff fails to appear on the irial, and the defendant appears and moves for a dismissal or nonsuit, the court must grant the moliun. Peralta v. Mariea, 3 Cal. 185. 4. When, upon the trial, the plaintiff fails to prove his case. The court below is justified in granting a defendant's motion for a nonsuit, in a case where the evidence, if submitted to the jury, would not have supported a verdict for the plaintiff. Geary v. Simmons. 39 Cal. 224; Hasten V. Griffen, 33 Cal. Ill; Stuart v. Simpson, 1 Wend. 376; Cravens v. Dewey, 13 Cal. 40; Ring- gold V. Haven, 1 Cal. 108; Dalrymple v. Hanson, 1 Cal. 12.5; Mateer v. Brown, 1 Cal. 221; 52 Am. Dec. 303; Ensminger v. Mclntirc, 23 Cal. •593. But the motion should not be granted, if there is evidence tending to prove all the ma- terial allegations of the complaint. McKee v. Greene, 31 Cal. 418; Ringgold v. Haven, 1 Cal. 108; De Ro v. Cordes, 4 Cal. 117; Cravens v. Dewey, 13 Cal. 40. The court should, of its own notion, dismiss a case based upon a considera- tion which contravenes public nolicy, whether the parties take the objection or not. Valentine v. Stewart, 15 Cal. 387. Plaintiffs may be non- suited upon the opening statement of their coun- sel. Hoffman v. Felt, 1 Cal. Unrep. 369. Where, in an action on a verbal contract, several dis- tinct promises, on the part of defendants, were alleged, and were denied by the answer, and on the trial the plaintiff introduced no proof, e.xcept as to one of the promises, it was held, that this was ground for nonsuit; that the provisions of the code required a relaxation of the common- law rule respecting a variance, and that it being apparent that defendants wore not surprised or prejudiced by the failure of proof, the error in stating the agreement should have been disre- garded. Peters v. Foss, 20 Cal. .")86. In an action of ejectment, one of several defendants, who, in his answer, disclaims all right, title, and interest in the premises, but also denies all the allegations of the complaint, and avers that "he was and still is lawfully seised and in posses- sion" of the land claimed, is not entitled to have the action dismissed as to liimself. Pioche v. Paul, 22 Cal. 105. In an action against four upon a joint contract, the plaintiff adduced no evidence to establish the joint liability of all, and a motion for a nonsuit was maile on this ground, but refused by the court, and judgment was rendered apainst all the defendants jointly. It was held, th.Tt the judgment was erroneous: but that the plaintiffs might have discontinued the suit as against those not shown to be liable, and have proceeded to judgment against those whose liability was established, upon such terms and conditions as should appear to be just. Ac- quital V. Crowell, 1 Cal. 191. If the complaint aver.s that the defendant brought a false charge against the plaintiff, and threatened to publibh the same, and injure his credit, unless he paid a false account, and that by reason of the false charge and threats he paid the name without other consideration, and prays judgment for the money thus paid, the payment of the money with- out consideration is the gist of the plaintiff's cause of action, and if he fails to offer evidence of the facts tending to show a want of considera- tion, a nonsuit should be granted. Kohler ▼. Wells Fargo & Co., 26 Cal. 607. Where, in an action for breach of a verbal contract, there was a slight difference between the slatenient in the complaint and that in the answer, of the promises on the part of the plaintiff, which were the con- sideration of defendant's promise, but no issue was raised by the answer as to the performance, by plaintiiT, of his promises, and, on the trial, plaintiff rested without proof as to the considera- tion, it was held, the absence of proof on this point was not ground for a nonsuit. Peters v. Foss, 20 Cal. 586. In an action of ejectment, a nonsuit should be granted as to such defendants as were not in possession of the premises at the commencement of the action. Garner v. Marshall, 9 Cal. 268. In an action of ejectment, upon disclaimer of possession or interest in the prop- erty, a judsrment for the plaintiff cannot be en- tered. \Vhen such disclaimer is relied upon, tiia proper judgment is one of nonsuit. Noe v. Card, 14 Cal. 576. In passing upon the correctness of the ruling of the court below in granting a non- suit, the supreme court will consider as proven every fact which the evidence tended to prove, and which was essential to be proven to entitle the plaintiff to recover. Dow t. Gould etc. Min- ing Co., 31 Cal. 630. 5. Referee may grant nonsuit. The referee, in cases referred to him, takes the place of the judge, and may grant, or the plaintiff may sub- mit to, a nonsuit in a proper case. Plant v. Flem- ing, 20 Cal. 92. 6. Discontinuance. The plaintiff commenced an action of forcible entry and detainer against the defendant, in a justice's court. The justice certified it to the district court. It was held, that the transfer was illegal, and did not defeat the plaintiff's right by operating as a discon- tinuance. Larue v. Gaskins. 5 Cal. 507. The submission of a cause to arbitration operates as a discontinuance. Gunter v. Sanchez, 1 Cal. 45. 7. Prcceedings on motion for nonsuit cr dis- missal. A partv moving for a nonsuit must state in his motion the precise grounds upon which he relies, so that the attention of the court and counsel may be directed to the supposed defects in the plaintiff's case. People v. Bauvard, 27 Cal. 474; Kiler v. Kimbal, 10 Cal. 267. 8. Waiver. Where a defendant, after moving for a nonsuit, introduces evidence supplying the defect in the plaintiff's testimony on which the motion for nonsuit was founded, he thereby waives his motion, and cannot insist upon it on appeal. Ringgold V. Haven, 1 Cal. 108; Smith v. Comp- ton, 6 Cal. 24; Perkins v. Thornburgh, 10 Cal. 189; Winans v. Hardenbergh, 8 Cal. 291. Whore plaintiffs, having excepted to the ruling of the court excluding certain evidence, take, in conse- quence of such ruling, a nonsuit, with leave to move to set it aside, they do not waive any of their rights to the exception taken. Natoma "Water etc. Co. v. Clarkin, 14 Cal. 544. 9. Generally. Where a complaint disclosed that the same subject-matter had been litigated be- tween the same parties in a prior suit, and that in such suit the plaintiff in this suit had set up the same equity which he claims by this, the ac- tion will be ordered to be dismissed. Barnett v. Kilbourne, 3 Cal. 327. Where the complaint in an action on a bill of exchange describes it as payable to the order of A., and the bill offered in evidence is drawn payable to B., it is a va- riance to be taken advantage of by objecting to the evidence, or by a motion of nonsuit. F;t::i!er V. Cram, 7 Cal. 135. In cases of nonsuit, costs ought not to be taxed, by way of indemnity. Kice T. Leonard, 5 Cal. (jl. §581a JUDGMENT, IN GENERAL. eso § 581a. Dismissal of action for failure to issue summons when. No action heretofore or hereafter commenced shall be further prosecuted, and nO' further proceedings shall be had therein, and all actions heretofore or here- after commenced must be dismissed by the court in Avhich the same shall have been commenced, on its own motion, or on motion of any party in- terested therein, whether named in the complaint as a party or not, unless- summons shall have issued witliin one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return, thereon made within three years after the commencement of said action. But all such actions 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; provided, that, except in actions to partition or to recover possession of, or to enforce a lien upon, or to deter- mine conflicting claims to, real or personal property, no dismissal shall be- had under this section as to am^ defendant because of the failure to serve summons on him during his absence from the state, or while he has secreted himself within the state to prevent the service of summons on him. the action may be dismissed, although there has been filed an affidavit of service on one of the defendants, and a copy of the summons. Grant v. McArthur, 137 Cal. 270; 70 Pac. 88. It is the duty of th& court to dismiss an action, commenced more than five years before the motion for dismissal, and in which no summons has- been served, or appearance made by the defendant. McColgan v. Piercy, 17 Cal. App. 160; 118 Pac. 957. The provision requiring a dismissal for a failure to make return of service within three years can- not apply to an action where service was actually made, trial had, and a judgment entered, which has become final, and which was rendered within a year after the com- mencement of the action. Jones v. Gunn, 149 Cal. 687; 87 Pac. 577. Court may dismiss within statutory period. While it is the duty of the trial court to dismiss an action, where the sum- mons has not been issued within one year,, or served and returned within three years, yet the court still retains the discretionary power to dismiss for undue delay in issu- ing or serving summons, even though the delay has been for a shorter period than that named in this section. Witter v, Phelps, 163 Cal. 655; 126 Pac. 593. A statutory provision for the dismissal of an action, if summons is not issued nor served within a given period, does not affect the power of the court, in the exer- cise of its discretion, to dismiss the action, for want of prosecution within said period. Bernard v. Parmelee, 6 Cal. App. 537; 92 Pac. 658. Appearance by defendant. This sectiou does uot require that the appearance shall be filed within three years, or within any specified time: the time limited is for the making of an appearance, and appearance is made when written notice of ajjpear- Legislation § 581a. Added by Stats. 1907, p. 712 ; the code romniissioner saying, "A new section containing the matter in subd. 7 of former § 581, but excepting from its operation those cases in which effective .iudgment cannot be re- covered against a defendant, when the failure to serve process upon him has been due either to his secreting himself within the state, or to absenting himself therefrom to prevent such ser- vice." This section is an amendment of the old seventh subdivision of § 581, ante. See note to that section, ante. Where defendant secretes himself. Proof that the defendant secreted himself to avoid the service of summons may be made in answer to a motion for dis- missal. W'ilson V. Leo, 19 Cal. App. 793; 127 Pac. 1043. Summons must be issued within one year. A defendant, who specially appears in the action and moves for its dismissal on the ground that no summons has been issued within a year after the action was commenced, is entitled, upon the subse- quent dismissal by the plaintiff, to one hundred dollars as costs to cover counsel fees. Caffey v. Mann, 3 Cal. App. 124; 84 Pac. 424. AVhere summons has been issued as against the original defendant within the year, the court may bring in an admin- istrator as a party, and direct the issuance and service on him of summons, more than a year after the commencement of the action, if the time in which an action can be brought against him as personal repre- sentative has not expired. Churchill v. Woodworth, 148 Cal. 669; 113 Am. St. Rep. 324; 84 Pac. 155. Service and return must be made within three years. .Summons must be served and return made within three years after the commencement of the action. Bernard v. Parmelee, 6 Cal. App. 537; 92 Pac. 658. Where there is no appearance within the time limited, and no return of summons. 631 DISMISSAL AFTER TRANSFER — JUDGMENT OX MERITS, ETC. §§ 581b, 582 ance is piven to the plaintiff. Anglo-Cali- fornian Hank v. Griswold, 153 Cal. C9'2; 96 Pac. 35.'i. A stii>ulation, signed by tho attorneys for both parties, though not filed, and extending the time to answer, is an "appearance," within this section. Roth v. Superior Court, 147 Cal. G04; 82 Pac. 246. Notice of appearance ami consent to judg- ment are not required to be filed within any particular time: filing is required only for jurisdiction. AngioC'alifornian Bank V. Griswold, 153 Cal. G92; 96 Pac. 353. The defendant does not, by demurring and moving for a change of the place of trial, waive his right to have the action dis- missed for undue delay in making the ser- vice of summons. Witter v. Phelps, 163 Cal.G55; 126 Pac. 593. § 581b. Dismissal of actions after transfer. No action heretofore or hereai'ter commenced, where the same was not originally commenced in the proper county, shall be further prosecuted, and no further proceedings shall be had therein, and all such actions heretofore or hereafter commenced must be dismissed by the court to which the same shall have been transferred, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, where the costs and fees of trans- mission of the pleadings and papers therein to the clerk or justice of the court to which it is transferred, or of filing the papers anew, have not been paid by the plaintiff for one year after the time when such pleadings or papers shall have arrived in the custody of such clerk or justice. The clerk of such court, or such justice shall, where such court or justice desires to dismiss an action under the provisions of this section, file anew such trans- ferred pleadings and papers without fee. Legislations 581b. Added by Stats. 1913, p. •.;44. § 582. All other judg-ments are on the merits. In all cases other than those mentioned in the last two sections, judgment must be rendered on the merits. action in any manner withdrawn at any Legislation § 582. 1. Enacted March 11, 1872; based on Practice Act, § 149. 2. Amendment by Stats. 1901, p. 143; un- constitutional. See note ante, § 5. 3. Amended by Stats. 1907, p. 712, (1) sub- stituting "all" for "every," before "case," and (2) the word "two sections" for "section"; the code commissioner saying, "Amendment rendered necessary by addition of last section to the code." Judgment on merits, what constitutes. A judgment on the merits is one which de- termines, either upon an issue of law or of fact, which party is right: a judgment that a party cannot be heard concludes only as to that question. Oakland v. Oak- land Water Front Co., 118 Cal. 160; 50 Pac. 277. A judgment on the pleadings is a judgment on the merits. Bailey v. Aon a note payable in gold coin, if the defendant suffers a default, the clerk may enter a judgment against him, pay- able in gold .•oiN. Harding v. Cowing, 28 Cal. 212; Galland v. Lewis, 26 Cal. 47. 7. Judgment entered by order of court. Upon facts found, whether by report of referee or spe- cial verdict of the jury, thi' action of the court must be invoked before the judgment can be en- tered. Peabody v. Phelps, 9 Cal. 224. If a de- murrer has been filed, the clerk cannot enter a default without an order of the court, Oliphant V. Whitney, 34 Cal. 25. If a frivolous demurrer is filed, and leave is not asked to file an answer, it is not error for the court to enter a default of judgment upon overruling the demurrer. Seale V. McLaughlin, 28 Cal. 668. If an answer is filed, raising an issue, and a trial is had. and wit- nesses are s-vorn and examined, and the court takes the case into consideration, it cannot then strike out the answer of the defendant and enter his default, and render judgment for plaintiff. Abbott v. Douglass, 28 Cal. 295. 8. What a default cures or admits. A defect- ive allegation of a fact may be cured by default or verdict, but not the entire absence of any alle- gation whatsoever. Hentsch v. Porter, 10 Cal. 555; Barron v. Frink, 30 Cal. 489; People v. Rains, 23 Cal. 137; Harlan v. Smith. 6 Cal. 173; McGregor v. Shaw, 11 Cal. 47; Watson v. Zim- merman, 6 Cal. 46; but see Payne v. Treadwell, 16 Cal. 243. If a person is sued by a fictitious name, and the return of the sheriff on the sum- mons shows service on the defendant by his jH-oper name, as "John Doe. alias Westfall," a default being entered, judgment may be rendered against the defendant in his true name, Westfall, without proof that Doe and Westfall are the same. Curtis v. Herrick, 14 Cal. 117; 73 Am. Dec. 632. 9. Waiver. The acceptance by plaintiff's at- torney of service of a demurrer, filed by a de- fendant after his default has been entered, waives the default. Hestres v. Clements, 21 Cal. 425. CHAPTER III. ISSUES. MODE OF TEIAL, 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. When may be restored. § 594. Parties may bring issue to trial. § 595. Motion to postpone a trial involving title to mining claim. § 596. In cases of adjournment a party may have the testimony of any witness taken. § 588. Issue defined, and the different kinds. Issues arise upon the pleadings when a fact or a conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds: 1. Of law ; and, 2. Of fact. 1. Of law and fact. See post. §§ 589, 590 2. Of fact, in justice's court. See post, 5§ 878 et seq. Legislation 8 588. Enacted March 11, 1873; based on Practice Act, § 151 (New York Code, § 248), which read: "An issue arises when a fact or conclusion of law is maintained by the one party, and is controverted by the other. Issues are of two kinds: 1. Of law; and, 2. Of fact." Construction of sections. The provis- ious of this section and §§ 656, 657, post, do not apply to every order that may be- §§ 589, 590 ISSUES — MODE OF TRIAL, AND POSTPONEMENTS. 638 made ex parte, or by the court on its owu motion, simply because the court has permitted v/ritten objections to be filed. Leach v. Pierce, 93 Cal. 614; 29 Pac. 235. It is not within the discretionary power of the court to dispense with the provis- ions of this section and §§ 589, 590, post; yet such provisions are not violated by a decision of the appellate court, that a party, by his conduct at the trial, is es- topped from asserting, on appeal, for the first time, that a fact found by the trial court, although outside of the issues, was not within the issues made by the plead- ings. Ortega v. Cordero, 88 Cal. 221; 26 Pac. 80. Issue arises when. An issue arises when a fact or conclusion of law is main- tained by one party, and is controverted by the other (Harris v. San Francisco Sugar etc. Co., 41 Cal. 393); and, by im- plication of law, upon new matter in the answer, deemed controverted by the oppo- site party. Eogers v. Eiverside Land etc. Co.. 132 Cal. 9; 64 Pac. 95. Motion for new trial. AVhenever, under the pleadings in a suit, an issue of fact is presented to a court, which is to be determined by the preponderance of evi- dence on the issue, a party is entitled, after a decision or finding thereon, to have the court re-examine it upon a motion for a new trial. People v. Bank of San Luis Obispo, 152 Cal. 261; 92 Pac. 481. CODE CO]VIMISSIONEES' NOTE. Schenck, 11 How. Pr. 500. Pardee v. p. 62, Kerr ed. p. 88, which did not have the comma nor the word "or" after "answer." CODE COMMISSIONUES' NOTE. Stats. 1854, p. 88. § 589. Issue of law, how raised. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. Issues of law, how raised in justice's court. See post, § 879. Legislation § 589. Enacted March 11, 1873; based on Practice Act, § 152 (New York Code, § 249), as amended by Stats. 1854, Redding ed. § 590. Issue of fact, how raised. An issue of fact arises — 1. Upon a material allegation in the complaint controverted by the an- swer ; and, 2. Upon new matters in the answer, except an issue of law is joined thereon. no place in an action to foreclose a mort- gage, where the defendant fails to an- swer. Waller v. Weston, 125 Cal. 201; 57 Pac. 892. A finding is erroneous which is outside of any issue presented in the case; and if on a material allegation, it is against the admissions of the pleadings, and a judgment based thereon is erroneous. Moynihan v. Drobaz, 124 Cal. 212; 71 Am. St. Rep. 46; 56 Pac. 1026. Issues of fact upon which findings are permitted or re- quired are only those specified in this section. Waller v. Weston, 125 Cal. 201 f 57 Pac. 892. Issues in probate accounts. The manner in which the accounts of an executor are usually made up, and the manner in which objections thereto are usually presented, do not conduce to the development of issues, such as arise upon pleadings in civil actions, and to which findings are re- quired to be responsive. Estate of Levin- son, 108 Cal. 450; 41 Pac. 4S3; 42 Pac. 479; Miller v. Lux, 100 Cal. 609; 35 Pac. 345, 639. Action of court reviewed how. The mode of reviewing the action of the court uj)on an issue of fact is the same, whether it is an action at law or a suit in equity: there must be a motion for a new trial. Harris v. San Francisco Sugar Eefining Co., 41 Cal. 393. New trial. A determination of an issue of fact is the verdict or decision sought to. Issues of fact, in justice's court, how raised. See post, § 880. Legislation § 590. Enacted March 11, 1872; based on Practice Act, § 153 (New York Code, § 250), as amended by Stats. 1854, Redding ed. p. 62, Kerr ed. p. 88, which had "therein" in- stead of "thereon." Issue of fact raised how. An issue of fact arises, only where a material aver- ment of fact is made on the one side and controverted on the other: the law does not raise issues of fact. Crackel v. Crackel, 17 Cal. App. 600; 121 Pac. 295. The effect of § 130 of the Civil Code, pro- viding that the court shall, upon default of the defendant in an action for divorce, require proof of the facts alleged before granting relief, is not to raise an "issue of fact." Foley v. Foley, 120 Cal. 33; 65 Am. St. Rep. 147; 52 Pac. 122. An issue of fact is raised, where a written oppo- sition is filed to a petition for letters testamentary, alleging the incompetency of the petitioner, and the petitioner files a written answer denying the facts so al- leged (Estate of Bauquier, 88 Cal. 302; 26 Pac. 178, 532); but there is no issue of fact as to an allegation of the complaint not controverted in the answer. Yaeger v. Southern California Ry. Co., 5 Cal. Unrep. 870; 51 Pac. 190. Findings proper wheiL The court can- not projierly make fimlings of fact and conc-jusiojis of law, unless issues are joined and a trial thereof had; and they have 639 ISSUES, HOW TRIED — JURY TRIAL. §§591,592 CODE COMMISSIONERS' NOTE. Shafter, 32 Cal. 17G. Marshall T. Trial by court, generally. Post. §§ (i!il et seq. Issues of law, in Justice's court. 1. How raised. Sci> post, § 879. 2. How tried. See po.st, § 881. Legislation 8 591. Enactod March 11, 1872; based on Practice Act, § 1.51, which read: "An issue of law shall be tried by the court, unless it be referred, upon consent, as provided in chapter VI of this title." Trial, defined. A trial is the examina- tion, before a competent tribunal, accortl- ing to law, of the facts or the law put in issue in a cause, for the purpose of determining such issue: when a court hears and determines any issue of fact or of law, for the purjjose of determining the rights of the parties, it may be con- sidered a trial. Tregambo v. Comanche Mill etc. Co., 57 Cal. 501; Goldtree v. Spreckels, 135 Cal. 666. The trial, by the be set aside when a new trial is asked under the code. Harris v. San Francisco Sugar Refining Co., 41 Cal. 393. § 591. Issue of law, how tried. An is.sue of law must be triod by the court, unless it is referred upon consent. court, of an issue of law, upon a demurrer to the complaint, without leave to amend, is a trial of the cause, which involves a judgment of dismissal, and precludes the right of the plaintiff to dismiss the action before trial, under the statute providing for the dismissal of the cause before trial. Coidtree v. Spreckels, 135 Cal. GOG; 67 I'ac. 101)1. Trial of issues on appeal from justice's court. .See note post, §§ 5'J2, !t7G. CODE COMMISSIONERS' NOTE. A trial i» the e.\amiiiation before a comi)eteiil tribuiinl, ac- cording to the law, of the facts, or a question of law i)ut in is.sue in a cause, for the purpose of determining such issue. Mulford v. Kstiidillo. .'i2 Cal. 131. Until a decision has been entered in the minutes, or reduced to writing by the judge, and signed by him, and filed with the clerk, a case has not been tried. Hastings v. Hastings, 31 Cal. 95. § 592. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code. AVhere in these cases there are issues both of law and fact, the issue 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. law courts, and in such case the party can- not be deprived of his constitutionalprivi- lege of jury. Hughes v. Dunlap, 91 Cal. 585; 27 Pac. 642. The right to a trial by jury is secured to the defendant by this section; and a demand therefor is not necessary in an action for the recovery of possession of personal propcrtv. Swasey v. Adair, 88 Cal. 179; 25 Pac. 1119. A written demand for a jury must be held to be a continued refusal to waive the right thereto; and a party is not required to repeat the demand after the court has once denied the application; and the ac- tion of the court, after such application, in proceeding to try the case for recovery of possession of certain personal property, without a jury, is reversible error. Swasey V. Adair, 88 Cal. 179; 25 Pac. 1119. The right to a trial by jury where an action is brought to recover specific real prop- erty, is not defeated by any particular form which the action mav take. Davis v. Judson, 159 Cal. 121; 113 Pac. 147; Hughes V. Dunlap, 91 Cal. 385; 27 Pac. 642. While a plaintiff out of possession may bring a suit in equity, un.ler § 738. post, to deter- mine an adverse claim against a defend- Generally, as to jury trial. Post, §§ 600-628. Waiver of jury trial. Post, § 631. Reference. Post, S§ fi3S-6.iri. Court, trial by. Post, §§ 631-636. Issues of fact. 1. lu justice's court, how tried. See post, § 882. 2. In forcible entry and detainer, to be tried by jury. See post, § 1171. Legislation § 592. 1. Enacted March 11, 1872; based on Practice Act, § 1,55 (New York Code, §253), which read: "An issue of fact shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as provided in this act. Where there are issues both of law and fact to the same complaint, the issues of law shall be first disposed of." When enacted in 1872, § 592 substituted (1) the word "must" for "shall," (2) "code" for "act," and (3) omitted the words "to the same complaint." 2. Amended by Code Amdts. 1873-74, p. 309. Eight to jury trial in actions at law. It is always for the judge, sitting as a chancellor, to determine whether, when certain rights are established, he will grant an equitable remedy prayed for, or compel the party to be satisfied with his legal remedy; but when the asserted rights, upon which any remedy may rest, are legal rights, and cognizable in a court of law, such rights must be determined according to the methods of the common- §592 ISSUES — MODE OF TRIAL, AND POSTPONEMENTS. 640 ant in possession, yet where the object of the action is to recover possession, and the defendant denies the allegations of the complaint, and sets up title by adverse pos- session, he cannot deprive the defendant of a jury trial of the issues raised by the aiswer. JSewman v. Duane, 89 Cal. 597; 27 Pac. 66. In an action to quiet title, brought by a party out of possession against one claiming title and in posses- sion, either party is entitled to a jury as a matter of right. Gillespie v. Gouly, 120 Cal. 515; 52 Pac. 816. Where the plaintiff has been ousted from possession, and the question of ownership is in issue, the par- ties are entitled to a jury trial upon that issue. Eeiner v. Schroeder, 146 Cal. 411; 80 Pac. 517; and see Donahue v. Meister, 88 Cal. 121; 22 Am. St. Rep. 283; 25 Pac. 1096. An action to recover damages for past trespasses upon land being an action at law, in which the parties thereto are entitled to a trial by jury, the fact that the plaintiff also asks for an injunction does not take away from him his right to have the real issues of fact tried by a jury. Hughes v. Dunlap, 91 Cal. 385; 27 Pac. 642. Eight to jury trial, and discretion of court, in equity cases. Causes of equitable cognizance fall solely within the provisions of the last clause of this section (Warring V. Freear, 64 Cal. 54; 28 Pac. 115; Learned V. Castle, 67 Cal. 41; 7 Pac. 34; Bell v. Marsh, 80 Cal. 411; 22 Pac. 170; and see Eeiner v. Schroeder, 146 Cal. 411; 80 Pac. 517) ; and in such causes the defendant is not entitled to a jury (Noble v. Learned, 7 Cal. Unrep. 297; 87 Pac. 402), nor is it error to refuse a demand for a jury trial in suits in equity (Ashton v. Heggertv, 130 Cal. 516; 62 Pac. 934); hence, it is not error to refuse the plaintiff a jury trial in a proceeding in equity to reform a contract. Loftus v. Fischer, 113 Cal. 286; 45 Pac. 328; and see La Societe Frangaise V. Selheimer, 57 Cal. 623; Fish v. Benson, 71 Cal. 428; 12 Pac. 454. The defendant in an action to foreclose the lien of an assessment is not entitled to a jury trial: such action is in equity, and is not founded upon any contract made by, or personal liability against, the defendant. Santa Cruz Rock Pavement Co. v. Bowie, 104 Cal. 286; 37 Pac. 934; Emery v. Bradford, 29 Cal. 75; Taylor v. Palmer, 31 Cal. 240; Cassidy v. Sullivan, 64 Cal. 266; 28 Pac. 234. Cases of fraud are subjects of both equitable and legal jurisdiction, and the parties are entitled to a jury trial, where the facts constituting the fraud, as well as the relief sought, are cognizable in a court of law; but where, on the case made, relief can only lie had in a court of equity, the parties are not entitled to a jury trial. I'ish v. Benson, 71 Cal. 428; 12 Pac. 454; La Societe Francaise v. Selheimer, 57 Cal. 623; .Jones v. Gardener, 57 Cal. 641; Lorenz V. Jacobs, 59 Cal. 262. The right to trial by jury in an action to abate a nuisance is not given either by the constitution or by statute; the prayer for damages is in- cidental to the relief sought; and the ac- tion being properly brought in a court of equity, all the issues in the case will be determined. McCarthy v. Gaston Ridge Mill etc. Co., 144 Cal. 542; 78 Pac. 7; Huilson V. Doyle, 6 Cal. 101; Courtwright v. Bear River etc. Mining Co., 30 Cal. 573; McLaughlin v. Del Re, 64 Cal. 472; 2 Pac. 244; Sweetser v. Dobbins, 65 Cal. 529; 4 Pac. 540. The issues in suits in equity should be tried by the court, unless it sees fit to order any or all of them to be submitted to a jury. McLaughlin v. Del Re, 64 Cal. 472; '2 Pac. 244; Churchill V. Baumann, 104 Cal. 369; 36 Pac. 93; 38 Pac. 43. The granting or refusing of a demand for a jury trial in suits in equity is entirely within the discretion of the court (Curnow v. Happy Valley etc. Hy- draulic Co., 68 Cal. 262; 9 Pac. 149; and see La Societe Franc^aise v. Selheimer. 57 Cal. 623); and whether the court shall submit special issues to the jury is also a matter within its own discretion. Schultz V. McLean, 109 Cal. 437; 42 Pac. 557. Right of court to order trial by jury. The court may order a cause to be tried by a jury, without assigning any reason therefor, although a jury is waived by both parties. Bullock v. Consumers' Lum- ber Co., 3 Cal. Unrep. 609; 31 Pac. 367. Motion for new trial. In order to re- view a question of fact, whether the case is at law or in equity, there must be a motion for a new trial. Thompson v. White, 63 Cal. 505. Waiver of jury. A jury can be waived only in one of the modes prescribed in § 631, post. Swasey v. Adair, SS Cal. 179; 25 Pac. 1119. Eight of court to order reference. An issue of fact, in an action at law, must be tried by jury, unless a jury is waived: it cannot be referred, except upon the written consent of both parties. Seaman V. Mariani, 1 Cal. 336. Injury is not pre- sumed in consequence of a trial by jury instead of by the court. Doll v. Anderson, 27 Cal. 248. Issue of law, disposal of. A defendant who has interposed a demurrer to the complaint has a right to a direct decision of the issue of law thereby presented, v/hether he fails to urge it or not. Win- chester v. Black, 134 Cal. 125; 66 Pac. 197. In an action for personal injuries, the jury should not be asked, "What was the proximate cause of the accident and injury complained of"': that question in- volves a question of law. Petersen v. Cali- fornia Cotton Mills Co., 20 Cal. App. 751; 130 Pac. 169. Trial complete when. A case cannot be considered as tried until a decision has been made and filed, unless the filing of the decision has been waived. Warring v. 641 CONCLUSIVENESS OF VERDICT AND FINDINGS. §592 Freear, G4 Cal. 54; 28 Pac. ll.j; Hastings V. Hastings, ;{ 1 Cal. 9.1. Couclusiveness of verdict and findings of jury. Where, iu an action to quiet title to i)roperty, a jury was inii)aiu-leii, with- out objection, to try the leji;al issues raised by the answer, a stijiulation by the par- ties, that the jury nii^ht render a general verdict in favor, of either party, is legiti- mate, and estops the unsuccessful party from repudiating the general verdict, •which is conclusive of the whole case. Johnson v. Mina Kica Gold Mining Co., 128 Cal. 621; Gl Pac. 76. A general ver- dict of the jury is conclusive on the court, save only the power to set it aside and grant a new trial, and no finding of the court can add to or take from the force of the verdict upon the principal issue iu the case. Keiner v. Schroeder, 146 Cal. 411; 80 Pac. 517. Where the issues arc submitted to a jury iu a suit in equity, their verdict is merely advisory. Mc- Carthy V. Gaston Kiilge Mill etc. Co., 144 Cal. 542; 78 Pac. 7; Hudson v. Doyle, 6 Cal. 101; Courtwright v. Bear River etc. Mining Co., 30 Cal. 573; McLaughlin v. Del Re, 64 Cal. 472; 2 Pac. 244; Sweetser V. Dobbings, 65 Cal. 529; 4 Pac. 540. The adoption of a verdict is equivalent to a finding by the court to the extent to which the verdict covers the issues made by the pleadings, and it is the duty of the court to find upon all the issues not covered by the verdict, unless they are waived. War- ring V. Freear, 64 Cal. 54; 28 Pac. 115; Bates V. Gage, 49 Cal. 126; Wingate v. Ferris, 50 Cal. 105. The general verdict of a jury in a suit in equity should be disregarded if insufiicient, and even a spe- cial verdict is merely advisory, and may be set aside, or disregarded, or adopted. Warring v. Freear, 64 Cal. 54; 28 Pac. 115; Brandt v. Wheatou, 52 Cal. 430; Stockman V. Riverside etc. Irrigation Co., 64 Cal. 57; 28 Pac. 116. Where, in proceedings to condemn property for a public use, the question whether the taking of the same is necessary for such use is submitted to the jury, and they find on the issue, the court has no power to disregard the finding and make findings of its own. Wilmington Canal etc. Co. v. Dominguez, 50 Cal. 505. Fraud as question of law or fact. See note 1 Ann. Cas. 446. Assumption of risk arising after commence- ment of employment as question of law or fact. See note '.^ Ann. Cas. 814. Reasonableness of time for delivery of goods AS question of law or fact. Sie note '(j Ann. Cas. •24.5. Proof of foreign law as properly made to court or jury. See note 7 Ann. Cas. 74. Negligence of railroad in constructing perma- nent structure close to tracks as question of law or fact. See note 7 Ann. Cas. ;!31. Original or collateral nature of oral promise •within statute of frauds as question of law or fact. See note 8 Ann. Cas. 539. Province of court or jury to determine whether ■contract is contrary to public policy. See note 11 Ann. Cas. 124. 1 Fair. — 41 EeasonablenesB of time In which goods are re- turned under contract of "sale or return" as question of law or fact. See note 14 Aiiu. Caa. 3:u. CODE COMJVIISSIONEES' NOTE. 1. Deflni- tiou 01 trial. Mullurd v. Estudillo, JJ Cal. IJl . ilaslirit's V. llaBUujfa, Jl Cul. 'Jj, cllud lu uuie tu § O'Jl, nnte. 2. Matters to be determined by the Jury. Uediciilioa of u btieet is a conclusion of fact, lo be drawn by the jury from the circuuiHluiicua of eacli case; the wliole qui-htion, as against the owner of the soil, beiiiK, wliellier tlieiu is huui- cient evidence of an iuteutiou ou his part to dedicate tiio land to the public as a public liijih- way. Harding v. .Jasper, 14 Cal. Ii48. 'llie (ques- tion of abaiidoiuneiit of a luiniii); claim is a question for tlie jury. WariiiK v. (.'row, 11 Cal. 371. As is thai of the rcabonablene.ss of tlie use of water to be determined by the jury upon the facts and circumstances of each particular case. Ksuiond v. Chew, Ij Cal. 14'J. So, too, the question of diligence. Weaver v. Eureka Lake Co., 15 Cal. 274. And the question ol damages in an action of trespass. Drake v. Palmer, 4 Cal. 11. The fact wheilier a structure was a public nuisance is a question for the jury. Cunter v. Geary, 1 Cal. 407. The (juestion of malice, in an action for malicious prosecution, is ^for the jury. Potter v. Scale, 8 Cal. 217. Iu *aii action for malicious prosecution of a suit on a bill of exchange which was paid, whether the plaintifis in that suit knew that the bill was iu fact paid, when they sued, is a question for the jury. Weaver v. Page, 6 Cal. 684. The existence of a custom is a question for the jury to decide. Panaud v. Jones, 1 Cal. 500. The question of notice of dissolution of partnersliip is a fact for the jury. Rabe v. Wells, 3 Cal. 151; Treadwell V. Wells, 4 Cal. 260. Where an action was brought for the balance of an account, and the answer set up .payment by a promissory note, and the plaintiff replied that he was induced to receive the note by fraud, the court held that it was one of the cases where the party was en- titled to a trial by jury, and th.it it could not be referred but by consent of the parties. Sea- man V. Mariani, 1 Cal. 336. Where the bound- aries of a lot of land are uncertain, the location of the lot is a question for the jurv. Revnolds V. West, 1 Cal. 328: Hicks v. Davis, 4 Cal. 69. What is actual and what is constructive posses- sion, in many cases is a question of fact for the jury. O'Callaghan v. Booth, G Cal. 65. So, too, is the question of the dedication of the premises by possession as a homestead. Cook v. Mc- Christian, 4 Cal. 26. 3. Matters to be determined by the court. A court does not require the verdict of a jury to inform it of facts occurring in the presence of the court. People v. .ludge of Tenth Judicial District, 9 Cal. 21. A party cannot try his case before a judge, without objection, and. after he has lost it, object that the case was not tried by a jury. Smith v. Brannan. 13 Cal. 115. If there is no dispute as to the facts, and the law upon those facts declares a tr;insaction fraudulent, there is no question for the jury. Chenerv v. Palmer, 6 Cal. 122; 65 Am. Dec. 493. What facts and circumstances constitute evidence of carelessness, is a question of law for the court to determine. But what weisrht the jury should give to these facts and circumstances is for the jurv. Gerke v. California Steam Nav. Co., 9 Cal". 258: 70 Am. Dec. 650. After judgment by default in ejectment, a jury trial cannot be awarded. Smith v. Billett, 15 Cal. 26. W'hether a judgment entered in the court below is entered in accordance with the mandate of the apoellate cDurt. is a question of law, and not of fact Leese v. Clark. 28 Cal. 33. 4. Juries, in equity cases. The language of the constitution as to trial by jury was used with reference to the right as it exists at common law. The right cannot be claimed in equity eases, unless an issue of fact be framed for the iurv, under the direction of the court. Kopnikus v. State Capitol Comm'rs , 16 Cal. 243; Smith v. Rowe, 4 Cal. 7: W^alker v. Sedgwick, 5 Cal. 192: Cahoon v. Levy, 5 Cal. 294. A court of equity may direct, whenever, in its judgment, it may §§ 593, 594 ISSUES — MODE OF TRIAL, AND POSTPONEMENTS. 642 become proper, an issue to be framed upon the pleadings, and submitted to the jury. Curtis v. Sutter, 15 Cal. 263; Weber v. Marshall, 19 Cal. 447. In equity cases, the court below may dis- regard the verdict of a jury. Goode v. Smith, 13 Cal. 84. Though special issues, framed by the court according to equity practice, may be tried by a jury in equity cases, but if the failure to present the issues is the result of plaintiff's own motion, he cannot be allowed to take advantage of it. Brewster v. Bours, 8 Cal. 505. 5. Jury, mandamus cases. In an application for mandamus to compel a judge to sign a bill of exceptions, which the petitioner alleges he re- fuses to do, where the judge in his answer avers that he has signed a true bill of exceptions, and that the one presented by the relator is not a true bill, it was held that the petitioner was not entitled to a jury to try the issue. People v. Judge of Tenth Judicial District, 9 Cal. 21. 6. Generally. Where issues of law and fact are both raised, the issue of law should first be disposed of. Brooks v. Douglass, 32 Cal. 208. If the ansM-er contains a legal and an equitable defense, the court may first try the equitable de- fense, and refuse the plaintiff a jur.v trial, and, if the facts warrant it, grant the equitable re- lief prayed for. Bodley v. Ferguson, 30 Cal. 511. Post, § 1085 Issue, generally. Ante, § 588. Abolition of terms. See Const., art. "VI, | 5. Legislation § 593. 1. Enacted March 11, 1873; based on Practice Act, § 156 (New York Code, § 256), which read: "The clerk shall enter causes upon the calendar of the court, according to the date of the issue. Causes once placed on the calendar for a general or special term, if not tried or heard at such term, shall remain upon the calendar from court to court, until finally disposed of." When enacted in 1872, §593 (1) substituted the word "must" for "shall," in both instances, and (2) omitted "the" before "issue." 2. Amended by Code Amdts. 1880, p. 5. Change of date of cause on calendar. The iDosition of a cause on the calendar will not be changed to a different day from § 593. Clerk must enter causes on the calendar, to remain until disposed of. When may be restored. The clerk must enter causes upon the calen- dar of the court according to the date of issue. Causes once placed on the calendar must remain upon the calendar until finally disposed of; pro- vided, that causes may be dropped from the calendar by consent of par- ties, and may be again restored upon notice. Mandamus to compel clerk to perform duty. that on which it is set by the clerk, whether upon the stipulation of the par- ties or on motion of either party, except upon good cause shown. Wetmore v. San Francisco, 43 Cal. 37. An order dismissing a demurrer must be regarded as equivalent to an order overruling it. Winchester v. Black, 134 Cal. 125; 66 Pac. 197; and see Voll V. Hollis, 60 Cal. 569; Davis v. Hur- gren. 125 Cal. 48; 57 Pac. 684. Knowledge of rules of court. The par- ties to an action are bound to know the rules of the trial court relating to the calling of the calendar and the setting of causes for trial. Dusy v. Prudom, 95 Cal. 646; 30 Pac. 798. § 594. Parties may bring issue to trial. Either party may bring an issue to trial or to a hearing, and. in the absence of the adverse party, un- less the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days' notice of such trial. 159 Cal. 778; 116 Pac. 44. A court should not dismiss an action, under the third sub- division of § 581, ante, except upon proof made in compliance with § 594. Estate of Dean, 149 Cal. 487; 87 Pac. 13. Notice of trial, necessity for and sufl- ciency of. This section was designed to prevent the manifest injustice of dismiss- ing a party's action, or trying it in his absence, because of his failure to appear at a time at which he could not be held to have had notice that the trial would be had, or that any proceeding would be taken against him. Estate of Dean, 149 Cal. 487; 87 Pac. 13. It is error to dis- miss an action as to interveners, where issues of fact are tendered by their com- plaint, without the five days' notice pre- scribed by this section, or a waiver thereof. Townsend v. Driver, 5 Cal. App. 581; 90 Pac. 1071. The jurisdiction of the court is not affected by a failure to comply with Dismissal. Ante, § 581. Surprise. 1. Setting aside judgment for. Ante, § 473. 2. New trial. Post, § 657. Legislation 8 594. 1. Enacted March 11, 1873; based on Practice .Act, § 157, which had the word "an" instead of "the," before "issue," in first line. 2. Amended by Stats. 1899, p. 5, adding the proviso. Construction of sections. This section does not require that a party intending to apply to the court to have a day fixed for the trial shall give notice of his in- tended application to the adverse party: it requires merely that five days' notice of the time set for the trial shall be given. McNeill & Co. v. Doe, 163 Cal. 338; 125 Pac. 345. The provision respecting five days' notice has reference only to proceed- ings taken against a party in his absence: it has no application to cases in which both parties are rei)resented when the case is called for trial. Sheldon v. Landwehr, 643 TITLE TO MINING CLAIM — MOTION TO POSTPONE TRIAL. § r/J5 a rule of the court requiring fivo days' notice of trial. Petition of Los Anjides Trust Co., L^S Cal. (JU3; 112 Pac .j(i. The parties to an action, ami their attorneys, •whether residents or nonresidents of the county where the case is pending, must watch its progress, and are charged with notice of the fact that it is set for trial. Dusy V. Prudoni, 9o Cal. 646; 30 Pac. 798; Bell V. Peck, 104 Cal. 35; 37 Pac. 766; Eltzroth V. Ryan, 91 Cal. 5.S4; 27 Pac. 932. Where the judgment recites that the de- fendant had been notified of the flay set for trial, more than five days prior thereto, a compliance with the provisions of this section is shown. Johnston v. Callahan, 146 Cal. 212; 79 Pac 870. A recital in the judgment, that, on the hearing of a mo- tion, both parties agreed in open court that the case slioubl be jieremptorily set for trial upon the decision of the motion, and the case was so set, is projier, where the defendant did not ap])ear, and the finding is conclusive as against counsel's statement conflicting therewith, as to the insufficiency of the notice of trial. Rodley V. Lyons. 129 Cal. «S1 ; 62 Pac. 313. Dismissal or judgment in absence of adverse party. Where the plaintiff fails to appear at the trial, the defendant may proceed with the case and have final judg- ment entered. Clune v. Quitzow, 12.5 Cal. 213; 57 Pac. SS6. A dismissal on account of the absence of the plaintiff, involving the absolute destruction of his rights, should be seriously considered by the court: so serious a penalty should not be imposed, unless the due administration 'of justice clearly requires it. Jaffe v. Lilien- thal, 101 Cal."^175; 35 Pac. 636. Absence at trial as waiver of jury. Where the defendant sends a telegram to the judge, demamling a trial by jury, on the day [•receding the trial, but fails to ajipear in person or hy counsel at the trial, the court may dispense with the .jury. McCuiirc V. Drew, s.', Cat. 22:!; 23 Pac. 3i2. Waiver of notice of trial. A guardian ad litem has power to wai\e the five days' notice of the setting of a case for trial required by this section; and such waiver is had, if the guardian, on the day set for trial, a{)pears in court and oltjects to the proceeding, and the court thereupon, without further objection from him, con- tinues the trial for three days. Granger v. Sheriff, 13;! ('al. 416; 65 Pac. 873. Presumption arising from notice of triaL A party who, having actual notice of the day of trial, and knowing also that no further postponement would be agreed to, fails to appear either in person or by at- torney, must be presumed to know that such failure would result in a trial in his absence. McGuire v. Drew, 83 Cal. 225; 23 Pac. 312. Relief for party absent from trial. To entitle a party to relief on the ground of surprise, where the trial is had in his absence, he must show that he was in- jured, and that a different result would be reached if a new trial were had. Mct7, and that they could not procure attendance of their attorneys, and were taken by surprise; that one Bridger was a ma- terial witness for defendant Menzel, and lived in Los Angeles, and Men/.el had seen him several weeks before, when he promised to be in attend- ance, but that he had not come, and that by rea- son of the promise, and what the attorney told them, they had taken no steps to secure the wit- ness's deposition. The court denied the motion for a continuance, and on the 15th of November overruled the demurrers. On the 18th, the de- fendants answered, and the cause was set for trial on the 19th. On appeal, it was held, that it was not error, under the circumstances, to (>ny the continuance or overrule the demurrers. Lightner v. Menzel, 35 Cal. 459. Where a case, set for trial on a particular day. with the knowl- edge and consent of defendant's attorney, and he then, two or three days before the day of trial, goes to another county to try another cause there, a continuance was denied. Haight v. Green, 19 Cal. 113. 3. Absence of a party. A case was called for trial in its regular place on the calendar; counsel for defendant moved to postpone the trial for three days, on account of the temporary absence of the defendant. The motion was based upon an affidavit of the business associate of the de- fendant, to the effect that the defendant had gone to the state of Nevada a few days previous to the motion, on important private business, and that affiant knew nothing about the facts of the case, but believed that it would be impossible to try it without the defendant's presence, as the facts were altogether within his knowledge, and that he did not know when defendant would re- turn, but he expected him to do so within a few days. The court denied the motion, and upon appeal it was held that the denial did not amount to an abuse of discretion. Wilkinson v. Parrott. 32 Cal. 102. 4. Newly discovered evidence. Material testi- mony, discovered at too late a period to produce the same at the trial, is good ground for a con- tinuance. Berry v. Metzler, 7 Cal. 418. 5. Surprise. If defendants are surprised by an amendment, and find it necessary to assume a different line of defense in conse(|uence of it, they are entitled to a continuance to prepare for their defense. Polk v. Coffin, 9 Cal. 58. A refusal to grant a continuance for the absence of witnesses or counsel, under circumstances showing that the party or his counsel was surprised as to the time or place of holding court, is erroneous. Ross V. Austin, 2 Cal. 183. If a party is taken by surprise by an extension of time to take tes- timony before a referee, and by the testimony thereby introduced, he is for that reason entitled to a continuance. People v. Ilolden, 28 Cal. 129. 6. Discretion of the court. Granting or refus- ing a continuance rests vimv 7nuch in the sound discretion of the court. Musgrove v. Perkins. 9 Cal. 2 11. And even when the facts show that the action of the court below approached au arbitrary exercise of its discretion, that action will not be reviewed, unless there has been a motion for a new trial, and the application sup- ported by the affidavits of the absent witness, if such affidavits can be obtained: or if not. then it should be shown to the court that they cunuot §§ 596, 600 FORMATION OF JURY. 646 testify to certain facts set up in the affidavit, and the trial proceeds, the affidavit becomes evi- dence, but not conclusive proof of its contents. Blankman v. Vallejo, 15 Cal. 645; Boggs v. Merced Mining Co., 14 Cal. 358. 8. Generally. Courts are liberal in granting postponements; and if a party, who is unpre- pared for trial at the time of the calling of his case, fails to move for a continuance, he waives his want of preparation, and cannot afterwards, when judgment has gone against him, move for a new trial on this ground. Turner v. Morrison, 11 Cal. 21. The mistaken advice of an attorney to his client, not to prepare for trial, is not ground for a continuance. Musgrove v. Perkins, 9 Cal. 211. An agrtement for a postponement, made by counsel, but not reduced to writing, will not be regarded by the court. Peralta v. Mariea, 3 Cal. 187. be obtained. Unless this be done, the appellate court will not interfere, in civil cases, with the ac- tion of the lower court. Pilot Rock Creek Canal Co. V. Chapman, 11 Cal. 161; People v. Gaunt, 23 Cal. lot). The judge, after iiaving heard the tes- timony and argument of counsel in a case, and announced orally from the bench his finding, may continue the case until the ne.xt term of court. Hastings v. Hastings, 31 Cal. 95. 7. Admissions to prevent a continuance. In criminal cases, on a motion for continuance made by defendant, on the ground of the absence of a material witness, based on a sufficient affidavit, the agreement of the district attorney, that the witness, if present, would have deposed as averred in defendant's affidavit, is not sufficient to warrant overruling the motion ; he should have agreed that the facts stated were true. People v. Diaz, 6 Cal. 249. Where the plaintiff, to avoid the continuance, admits that a witness would § 596. In cases of adjournment a party may have the testimony of any witness taken. The party obtaining a postponement of a trial in any court of record must, if required by the adverse party, consent that the testi- mony of an3^ witness of such adverse party, who is in attendance, 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 produced. Depositions, in the state. Post, §§ 2019-2021, 2031-2038. Legislation § 596. Enacted March 11, 1872; based on Practice Act, ^ 664, as amended by Stats. 1854, Redding od. p. 73, Kerr ed. p. 102, § 76, which (1) had the words "shall also" in- stead of "must," after "court of record," and (2) "shall" instead of "must," before "accordingly." Essentials of deposition. The deposi- tions must be taken in the manner pre- scribed by the code, when made a valid condition to a continuance; and the re- porter's notes of the testimony of the witnesses, at the time of granting the con- tinuance, but not read over or signed or corrected by them, nor certified by the reporter or by any other person, are lack- ing in the essential elements of a deposi- tion, and an uncertified transcript thereof is not admissible at the trial. Thomas v. Black, 84 Cal. 221; 23 Pac. 1037. CODE COMMISSIONERS' NOTE. Stats. 1854, p. 73. CHAPTER IV. TRIAL BY JURY. Article I. Formation of Jury. §§ 600-604. II. Conduct of Trial. §§ 607-619. ni. Verdict. §§ 624-628. ARTICLE I. FORMATION OF JURY. S 600. Jury, how drawn. § 602. Challenge of jurors for cause. § 601. Challenges. Each party entitled to four § 603. Challenges, how tried, peremptory clialUiiges. § 604. Jury to be sworn. § 600. Jury, how drawn. When the action is called for trial by jury, the clerk must draw from the trial-jury box of the court the ballots con- taining the names of the jurors, until the jury is completed, or the ballots are exhausted. Legislation § 600. Enacted March 11, 1873; based on Practice Act, § 159, which read: "When the action is called for trial by jury, the clerk shall prepare separate ballots containing the names of the jurors summoned who have appeared and not been excused, and deposit them in a bo.x. He shall then draw from the l)ox twelve names, and the persons whose names are drawn shall constitute the jury. If the ballots become ex- Jury. 1. Generally. Ante. §§ 190-254. 2. Trial. Ante, § § ]93, 194. 3. Trial by, conduct of. Post, §§ C07 et seq. 4. Waiver of. Post, S 631. Verdict. I'.iRt, §§ fi24 el seq. Trial-jury box. .\nte. § 246. Jurors, who are competent. Arte, §§ 198, 199. Exceptions and excuses. Ante, §§ 200-202. (347 CRIMINAL AND EQUITY CASES — CHALLENGING JURORS. GOl venire, when there is notliing to inlaintiff, under a lease which re- quired him to deliver, as rent, a share of the crop, is not disqualified, under the third subdivision. Arnold v. Producers' Fruit Co., 141 Cal. 738; 75 Pac. 326. Juror in previous trial. A jury is not rendered incompetent because it has just tried a case involving the liability of the defendant for a similar cause of action, depending on the same general considera- tions. Algier v. Steamer Maria, 14 Cal. 167. Interest in result of action. The fifth subdivision, construed, does not expressly remove the disqualification of a judge, be- cause of his membership or citizenship in a municipal corporation, which, alike with that of a juror, existed at common law. Meyer v. San Diego, 121 Cal. 102; *5(j Am. St. Rep. 22; 41 L. R. A. 762; 53 Pac. 434. Opinion as to merits of action. Where a juror states that he had formed an opin- ion on an issue in the case while sitting as a juror on a trial of a different cause of action, he is properly excused. Grady V. Karly, 18 Cal. lOS. Enmity or bias. The right to unbiased and unpr(?judict'd jurors is an inseparable and inalienable part of the right to trial ^^y jury guaranteed by the constitution; but the rule excluding jurors for actual bias in civil cases is not to be confounded with the rule in criminal cases, in rela- tion to opinions founded or based on jjublic rumor, statements in public journals, or common notoriety, which permits the ac- ceptance of a juror, if it appears to the court, on his declaration, that he can and will, notwithstanding such opinion, act impartially and fairly on matters sub- mitted to him. Lombardi v. California Street Ry. Co., 124 Cal. 311; 57 Pac. 66. The .statement by a juror, that, should the testimony be evenly balanced, he would decide for the plaintiff, and should tho verdict be for the plaintiff, he would go to the biggest verdict, shows such bias in favor of the plaintiff as to render the dis- allowance of the challenge error. Lom- bardi V. California Street Ry. Co., 124 Cal. 311; 57 Pac. 66. The mere fact that jurors summoned are acquainted with the plain- tiff does not imply bias in his favor, any more than it raises a presumption of prejudice against him. Perkins v. Sunset Telephone Co., 155 Cal. 712; 103 Pac. 190. A challenge for actual bias, where the juror stated that he had an abiding preju- dice against cases of the class in which the" one he was summoned belonged, anyould incline to their of the one upon which any particular challenee side, but would decide against them if the testi- rests is essential to its consideration bv the mony was against them, and he would do his court. It is not sufficient to sav: "I challenge duty as a juror under the instruciions of the the juror for cause." Paige v. O'Neal, 12 Cal. 483. § G03. Challenges, how tried. rhall('ii<:os for r-ause must be tried by the court. The juror challen-^ed and any other person may be examined as a witness on tlie trial of the eliallenfre. Challenge, grounds of, in justice's court. See Discharge of accepted Juror for Incapacity or post, § 88:). impropriety. See note 1 .\m. St. K.p. :>-rz. Legislation S 603. Enacted March 11, 1872; Improper refusal of court to sustain ohallenge based on Practice Act, § 163, which had "shall" *° juior for cause as warranting reversal where instead of 'must" injured party exhausts his peremptory challenges. Examination of jurors upon voir dire. See note ^'^•-' "^^'^ ^ -*■""• ^'"^- ^'^^■ 23 Am. Dec. 177. §604. Jury to be sworn. As soon as the jury is completed, an oath must be administered to the jurors, in substance, that they and each of them will well and truly try the matter in issue between -, the plaintiff, aiid . defendant, and a true verdict render according to the evidence. °f,|»- .^f^^i'iistration of, generally. Post, oath means that he is to act upon his own *^ judgment. People v. Perry, 144 Cal. 748: Legislation 8 604. Enacted March 11. 1872; 78 Pac. 284. based on Practice Act, g 160. which (1) had the T>vaei,i-,-,v.+<«». »„ *» _ jj ^ -r^ words "oath or affirmation shall" instead of "oath i-iesumption as tO Verdict. It cannot must," (2) did not have the word "and" before be assumed that any member of a jurv ren- "each of them," and (3) had the word "the" be- dered his verdict in violation of his' oath fore 'defendant. ^jj,j ^-^^ instructions of the court. People Jury sworn when completed. When the v. Loomcr, 13 Cal. App. 654; 110 Pac 466. jury is completed, it is to be sworn. Peo- Failure of record to show that jury were sworn pie V. Scoggins, 37 Cal. 67(i; Tavlor v. as ground for reversal. See notes 8 Ann Cas. Western Pacific E. E. Co., 4.') Cal. 323. '■'"'• > ' •^""- ^'■'''- i"^- Explanation of meaning of oath. It is .. ^op^. cojimissioners' note. The term , i. ■ c ■ iu i u- °^^f' includis aftirmation. See subd. 7 of not necessary to iniorm a juror that his § 17^ ante. ARTICLE 11. CONDUCT OF TRIAL. §607. Order of proceeding on trial. §614. May come into court for further instruc- § 608. Charge to the jury. Court must furnish, tions. in writing, upon request, the points of §615. Proceedings if juror becomes sick. law contained therein. § 616. When prevented from giving verdict, the § 609. Special instructions. cause may be again tried. § 610. View by jury of the premises. § 617. While jury are absent, court may adjourn § 611. Admonition when jury permitted to sepa- from time to time. Sealed verdict. rate. § 618. Verdict, how declared. Form of. Polling § 612. Jury may take with them certain papers. the jury. §613. Deliberation of jury, how conducted. §619. Proceedings when verdict is informal. § 607. Order of proceeding on trial. When the jury has been sworn, the trial must proceed in the following order, unless the judge, for special reasons, otherwise directs : 1. The plaintiff, after stating the is.sue and his case, must produce the evidence on his part ; 2. The defendant may then open his defense, and offer his evidence in support thereof; 3. The parties may then respectively offer rebutting evidence only, un- less the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case; 607 CONDUCT OF TRIAL BY JURY. 652 Ante, 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 defenses, appear by different counsel, the court must determine their relative order in the evidence and argument ; 6. The court may then charge the jury. tion of the complaint. Turner v. Southern Pacific Co., 142 Cal. .580; 76 Pac. 384. Proof of the execution of an instrument, rolled upon by the defense, is not proper on the cross-examination of the plaintiff. Haines v. Snedigar, 110 Cal. 18; 42 Pac. 462. Any error in admitting a copy of a deed is cured by subsequent proof of its loss. Kenniff v. Caulfield, 140 Cal. 34; 73 Pac. 803. The defense of a former ad- judication is available only upon proof thereof, made only after the plaintiff has proved his case. Harding v. Harding, 148 Cal. 397; 83 Pac. 434; Watkins v. Glas, 5 Cal. App. 68; 89 Pac. 840. Admissibility of evidence in rebuttal. It is within the discretion of the court to allow, for good cause shown, the admission of evidence in rebuttal, which should have been introduced in presenting the main case. Patterson v. San Francisco etc. Ry Co., 147 Cal. 178; 81 Pac. 531; Lisman v Early, 15 Cal. 199; Yankee .Jim's Union Water Co. v. Crary, 25 Cal. 504; 85 Am Dec. 145; Kohler v. Wells Fargo & Co. 26 Cal. 606. The admissions of a defend ant are properly excluded in rebuttal where the plaintiff has not asked permis sion to reopen his case for that purpose Young V. Brady, 94 Cal. 128; 29 Pac. 489 No good reason being shown, it is not error to refuse to permit, in rebuttal, addi tional evidence as to matters gone into fully in the main case (Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178; 81 Pac. 531); nor is it error to refuse to allow testimony held in reserve until the testi- mony of the other party is in, and then attempted to' be introduced by way of rebuttal (Kohler v. Wells Fargo & Co., 26 Cal. 606) ; nor is it error to refuse to allow a plaintiff to recall a witness, in rebuttal, for the sole purpose of contradicting a witness for the defendant on a point upon which the plaintiff's witness has already testified. Phelps v. MeGloan, 42 Cal. 298. Entering upon the original case by the plaintiff, and again proving the same facts that were proved by him in making his prima facie case, is not authorized. Yan- kee Jim's Union Water Co. v. Crary, 25 Cal. 504. It is proper to admit, in rebut- tal, evidence of deraignment of title, where the defendant relies upon adverse possession, the plaintiff being entitled to rely on prima facie evidence of title in the first instance (Abbey Homestead Ass'n v. Willard, 48 Cal. 614); and also evide"nce Proceedings, etc., on trial. 1. Amendments. Ante, § 473. 2. Either party may bring on trial. § 594. 3. Nonsuits, etc. Ante, § 581. 4. As to proof necessary to make out case. Post, §§ 1867, 1869. 5. Variance, Ante, §§ 469-471. 6. View by jury. Post, § 610. Evidence. 1. Order of proof. Post, § 2042. 2. Admissibility is for court. Post, § 2102. 3. Allegations, material, only, need be proved. Post, § 1867. 4. Burden of proof. Post, §§ 1869, 1981. 5. Relevancy of evidence. Post, §§ 1868- 1870. 6. Relevancy, collateral facts. Post, §§ 1868, 1870. Witnesses. 1. Answer, witness must. Post, § 2065. 2. Cross-examination. Post, § 2048. 3. Direct examination. Post, § 2045. 4. Excluding witnesses from court-room. Post, § 2043. 5. Experts. Post, § 1870, subd. 9. 6. Impeaching, and evidence of good char- acter. Post, §§ 2049-2053. 7. Interpreters. Post, § 1884. 8. Leading questions. Post, § 2046. 9. Mode of interrogation. Post, § 2044. 10. Oaths. Post, §§ 2093-2097. 11. Protection of witnesses. Post, § 2066. 12. Refreshing memory. Post, § 2047. 13. Testimony, clerk to take down, if no shorthand reporter. Post, § 1051. 14. Writing shown to witness, other side may see. Post, § 2054. Charge to jury. Post, §§ 608, 609. Legislation § 607. Enacted March 11, 1872. Construction of section. The court may depart from the order of procedure pre- scribed in this section, but error cannot ordinarily be predicated upon its refusal to do so. Watkins v. Glas, 5 Cal. App. 08; 89 Pac. 840. Plaintiffs, who are. Contestants of the probate of a will are plaintiffs, and have the affirmative of all the issues raised by the contest. Estate of Dalrymple, 67 Cal. 444; 7 Pac. 906; Estate of Latour, 140 Cal. 414; 73 Pac. 1070. Order of proof. The mere order in which evidence is introduced is very much in the discretion of the court, and will not be interfered with on appeal, except for abuse of discretion. Bates v. Tower, 103 Cal. 404; 37 Pac. 385; Crosett v. Whelan, 44 Cal. 200; People v. Shainwold, 51 Cal. 468. Where a denial places the burden of proof on the defendant, it is not error to require him first to introduce evi- dence in support of an affirmative defense thus set up. Clarke v. Fast, 128 Cal. 422; 61 Pac. 72. Evidence in anticipation of an affirmative defense is properly excluded, where it is not responsive to any allega- 653 MOTION TO STRIKE OUT — ARGUMENT — REOPENING CASE. §607 that the plaintiff was a boua fide purchaser in good faith, without notice, and for a valuable consideration, in an action to quiet title, wliere the defendant had in- troduced a deed of a date jirior to that of the plaintiff (Douglass v. Willard, 129 Cal. 38; 61 Pae. 572); and also additional evi- dence of the credibility of a witness, which has been attacked by the evidence of the ojiposite party (Wade v. Thayer, 40 Cal. 578); and evidence to explain testi- mony which the defendant had introduced to contradict the plaintiff's testimonv. Bradford v. Woodworth, 108 Cal. 684; 41 Pac. 797. Sufficiency of evidence. In an action to recoNcr damages for jiersonal injuries to the plaintiff as the result of an assault, wherein the defendant admits the assault, but pleads self-defense, the plaintiff, in order to establish his case, is not required to prove that the defendant assaulted him w-ithout cause. Hardy v. Schirmer, 163 Cal. 272; 124 Pae. 993. Motion to strike out testimony. A mo- tion to strike out the testimony of a wit- Dess, to be available, must be directed with precision to the testimony sought to be stricken out. Lucy v. Davis, 163 Cal. 611; 126 Pac. 490. A party objecting to a question, or moving to strike out testi- mony, should be required to state the grounds of his objection or motion. Spear v. United Eailroads, 16 Cal. App. 637; 117 Pac. 956. Where no objection is made to the admission of evidence at the time it is given, a motion to strike it out, after the case is closed, is properlv denied. Perkins v. Blauth, 163 Cal. 782;' 127 Pac. 50. After a witness has testified to his opinion of the mental condition of a testa- tor, and also to other matters, a motion to strike out the entire testimony of' the witness, on the ground that he was not an intimate acquaintance, does not lie. Estate of Huston, 163 Cal. 166; 124 Pae. 852. Right to ope-Ji and close argument. Where the ownership of land, in condemna- tion proceedings, is not in issue, the de- fendant has no right to open and close the argument: that right belongs to the plaintiff. Mendocino County v. Peters, 2 Cal. App. 24; 82 Pac. 1122. Argument of counsel may include what. The argument is under the control of the court, and extraneous matter should not be brought in and commented upon. Knight V. Russ, 77 Cal. 410; 19 Pac. 698. It is not misconduct for the defendant's coun- sel, in arguing to the jury, to refer to matters covered bv findings that are be- fore them. Gjurich v. Fieg, 164 Cal. 429; 129 Pac. 464. It is within the discretion of the court to permit counsel to read to the jury and to comment upon instructions previous] V settled bv the court (Boreham V. Byrne,' 83 Cal. 23; 23 Pac. 212); and to read sections of the codes to the jurv, in argument (Meyer v. Foster, 147 Cal. 166; 81 Pac. 402; and see Peoj)le v. Anderson, 44 Cal. 65; Peoide v. Forsvthe, 65 Cal. 101; 3 Pac. 402; People v. Treadwell, 69 Cal. 226; 10 Pac. 502; Sullivan v. Koyer, 72 Cal. 248; 1 Am. St. Rep. 51; 13 Pac. 6.55); and the reading of pleadings, or calling the attention of the jury to facts alleged therein, during the argument, is not im- ]iroper (Knight v. Kuss, 77 Cal. 410; 19 Cal. 698); but the practice of reareme court is not error. People v. God- ^vin. 12:; Cal. 374 ; ", Pac. 1059. Written argument. To permit a motion to be argued on briefs is simply to permit a written argument on the motion instead of an oral one. McNeill & Co. v. Doe, 163 Cal. 338; 125 Pac. 345. , Reopening of case after submission. ' The reopening of the case after submis- sion., for the introduction of additional evidence, is within the discretion of the court (Miller v. Sharp, 49 Cal. 233; Bris- walter v. Palomares, 66 Cal. 259; 5 Pac. 226; Consolidated National Bank v. Pacific Coast S. S. Co., 95 Cal. 1; 29 Am. St. Rep. 85; 30 Pac. 96; San Francisco Breweries v. Schurtz, 104 Cal. 420; 38 Pac. 92; Douglass v. Willard, 129 Cal. 38; 61 Pac. 572); and the appellate court will inter- fere with the orders of the lower court, in such cases, only for abuse of discretion. Douglass V. Willard, 129 Cal. 38; 61 Pac. 572. It is not an abuse of discretion to allow the reopening of the ease, after sub- mission, in order to permit the plaintiff to prove, by the clerk's register of actions, that a prior action for the same cause had been dismissed in proper form (Loewenthal V. Coonan, 135 Cal. 381; 87 Am. St. Rep. 115; 67 Pac. 324) ; nor to refuse the reopen- ing, where the proposed evidence is merely cumulative, and its admission could not , affect the result (Estate of Walker, 143 ^^jUi Cal. 162; 82 Pac. 770); nor to refuse the reopening, to supply proof as to the sufli- cieucy of a tax deed admitted in proof of title, after objection and warning of opposing counsel of the necessity of such proof (Haines v. Young, 132 Cal. 512; 64 Pac. 1079); nor to refuse the reopening, where no issue is raised by the pleadings to which the evidence offered is relevant. San Francisco Breweries v. Schurtz, 104 Cal. 420; 38 Pac. 92. Where an amended complaint was permitted to be filed, based on an affidavit setting up facts learned since the case was tried and submitted, and permission was given to take further testimony, what further relevant testi- mony may be allowed is within the dis- cretion of the court. I>ee v. Murphv, 119 Cal. 364; 51 Pac. 549, 955. Bight of trial court to direct verdict at close of opening statement of plainti£f's counsel. See note 14 Ann. Cas. 699. I 608 CONDUCT OF TRIAL BY JURY. 654 trials are now sometimes conducted, the counsel sits leisurely in his seat, writing down at length all the questionsv and answers, and the court meeting at ten and adjourning at three, a single witness remains under examination from day to day. and the trial lasts for weeks, when it should be ended in as many days. . . . With resolution on the part of the courts, and a few rules, such as they should adopt, we are persuaded that more than half the time now spent in trials might be saved." Field, Graham, and Loomis. CODE COMMISSIONEBS' NOTE. "The length to which trials are now protracted is a matter of great and just complaint. The remedy lies chiefly with the courts. If they would adhere inflexibly to the rule that a question once decided shall not be debated anew, and would stop the ex- amination of a witness when he has been already sufficiently examined, a vast deal of time might be saved. It is a rule in the English courts, and in the courts of some of our states, that a counsel shall stand while he is examining a wit- ness. The same rule would be useful here. As § 608. Charge to the jury. Court must furnish, in writing, upon re- quest, the points of law contained therein. In charging the jury the court may state to them all matters of law which it thinks necessary for their information 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 ques- tions of fact. The court must furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge, or sign, at the time, a statement of such points prepared and submitted by the counsel of either party. Matters of law, court stating, in charge. Const., art. VI, § 19; post, §§ 657, subd. 7, §§ 2102, 2061. Legislation § 608. 1. Enacted March 11, 1872; based on Practice Act, § 165, which had (1) the word "shall" instead of "may," in first line, (2) the words "shall also" instead of "must," before "inform the jury," (3) the word "shall" instead of "must," before "furnish to either," and (4) the word "shall" before "sign." 2. Amendment by Stats. 1901, p. 145; uncon- .stitutional. See note ante, § 5. Must be on law. Each party is entitled to instructions on the law of the case, on the theory that the jury will regard all his testimony as true. Sperry v. Spaulding, 45 Cal. 544. Eefusal or neglect to in- struct on commonplace matters of law is not ground for reversal, when no errone- ous instruction on the subject is given, jurors being assumed to have ordinary in- telligence and good sense. Davis v. Mc- Near, 101 Cal. 606; 36 Pae. 105; Estate of Keegan, 139 Cal. 123; 72 Pac. 828. Quot- ing from the decisions of other courts, in other cases, is not error, if the quotations correctly state the law. Cousins v. Par- tridge, 79 Cal. 224; 21 Pac. 745; Estate of Spencer, 96 Cal. 448; 31 Pac. 453; People v. McNabb, 79 Cal. 419; 21 Pac. 843;- Etchepare v. Aguirre, 91 Cal. 288; 25 Am. St. Rep. 180; 27 Pac. 668. Incorrect in- structions are proper! v refused (Silva v. Bair, 141 Cal. 599; 7.5 Pac. 162); as are also instructions not containing a state- ment of anv rule of law. Higgins v. Wil- liams, 114 Cal. 176; 45 Pac. 1041. All the law applicable to the case is not required to be stated in a single instruction. Ander- son v. Seropian, 147 Cal. 201; 81 Pac. 521; Bradley v. Lee, 38 Cal. 362. The weight of evidence, or preponderance of proba- bility, is sufficient to establish the fact: an instruction to the jury, that it should be proved "to your satisfaction, by a pre- ponderance of the evidence," would be t)etter without the phrase "to your satis- faction." Hutson V. Southern California By, Co., 150 Cal. 701; 89 Pac. 1093. Jury must not judge law. An instruc- tion leaving the jury to determine whether or not the answer denies the allegations of the complaint is erroneous: the construc- tion of pleadings is for the court (Taylor V. Middleton, 67 Cal. 656 j 8 Pac. 594); and an instruction submitting to the jury the question as to what facts were ad- mitted by the pleadings is properly re- fused. Tevis V. Hicks, 41 Cal. 123; Taylor V. Middleton, 67 Cal. 656; 8 Pac. 594. Instructions bind jury. The jury are bound by the instructions, whether correct or not (Loveland v. Gardner, 79 Cal. 317; 4 L. R. A. 395; 21 Pac. 766; Emerson v. Santa Clara County, 40 Cal. 543; Sappen- field V. Main Street etc. R. R. Co., 91 Cal. 48; 27 Pac. 590); and the instructions are the law of the case, so far as the jurors are concerned. Lind v. Closs, 88 Cal. 6; 25 Pac. 972. Should not be on facts. An instruction on a question of fact is properly refused (Estrella Vineyard Co. v. Butler, 125 Cal. 232; 57 Pac. 980); but an instruction as to "alleged defects," not constituting an in- struction on a matter of fact, is not er- roneous (Anderson v. Seropian, 147 Cal. 201; 81 Pac. 521); and an instruction on the facts is not erroneous, where there is no conflict in the evidence as to the facts referred to. Watson v. Damon, 54 Cal. 278. An instruction as to the form of a verdict is not an instruction on a matter of fact, where no question was raised either in the pleadings or at the trial as to the exist- ence of such fact. Feliz v. Feliz, 105 Cal. 1; 38 Pac. 521. .Judges are prohibited by the constitution from charging juries as to the facts; hence, it is improper for the court, in its instructions, to select the testimony of particular witnesses as en- titled to special weight or consideration. Huyck V. Rennie, 1.51 Cal. 411; 90 Pac. 929. An instruction as to the force or effect of evidence on the question of 655 INSTRUCTIONS — WHAT PROPER. 608 fraudulent intent, whifh is mmlo a ques- tion of fact, is erroneous (Miller v. Stew- art, 24 Cal. 502) ; but an instruction, merely stating the claim of the jilaintitf as to the facts, and not stating^ the facts as being jiroved, does not invade the province of the jury (Jarman v. Rea, 137 Cal. 339; 70 Pac. 216; Carraher v. San Francisco Bridge Co., 81 Cal. 98; 22 Pac. 480); but merely applying the law to hypothetical facts, and submitting to the jury the ques- tion whether the facts hypothetically stated are true, is not an instruction on a question of fact. Baddelev v. Shea, 114 Cal. 1; 55 Am. St. Rep. 56; 3:? ^. R. A. 749; 45 Pac. 990. An instruction stating facts hyiiothetically, which are within the issues, and instructing the jury to find for the plaintiff or for the defendant, according as they may find by a prepoiulerauce of evidence, whether such facts are proved or not, does not invade the province of the jury as to matters of fact. Rvan v. Los Angeles Ice etc. Co., 112 Cal. 244; 32 L. R. A. 524; 44 Pac. 471. A statement in an instruction, that the evidence tends to prove a matter in issue, is not erroneous. Morris v. Lachman, 68 Cal. 109; 8 Pac. 799; and see People v. Vasquez, 49 Cal. 560; People v. Perry, 65 Cal. 568; 4 Pac. 572. An instruction taking from the jury the principal issue of fact in the case is erroneous (Levitzky v. Canning, 33 Cal. 299; People v. King, 27 Cal. 507; 87 Am. Dec. 95; Perkins v. Eckert, 55 Cal. 400): it is only where the fact is admitted, or there is no shadow of conflict in the evidence with respect thereto, that the court is justified in taking it from the jury. Dean V. Ross, 105 Cal. 227; 38 Pac. 912; People V. Phillips, 70 Cal. 61; 11 Pac. 493. Ref- erence, in an instruction, to matters on which there is no evidence, is not errone- ous, where the instruction does not assume the existence of such fact, and the state- ment does not tend to prejudice the de- fendant. Bosqui V. Sutro R. R. Co., 131 Cal. 390; 63 Pac. 682. An instruction as to an account stated between the parties is properly refused, where the plaintiff did not consent to the account rendered by the defendant. Ah Tong v. Earle Fruit Co., 112 Cal. 679; 45 Pac. 7. An instruc- tion, that if the jury are satisfied that defendant's testimony is true, they shall render a verdict in his favor, and if not, they shall find for such damages as they may think proper to allow, leaves it sutfi- ciently plain to the jury that they are the exclusive judges of the facts. Gately v. Campbell, 124 Cal. 520; 57 Pac. 567; Jones V. Chalfant, 3 Cal. Unrep. 585; 31 Pac. 257. An instruction, that the mere slip- ping of the wheels of a vehicle on a wet street-car track, resulting from an attempt to avoid a collision, would not conclu- sively, or as matter of law, repel the im- putation of negligence, is not erroneous, where tlicro is evidence to sustain the action. Roche v. Rfdiiigton. 125 Tal. 174; 57 Pac. 890. The burden of j)roving con- tributory negligence is cast upon the de- fendant, and such negligence is a question of fact for the jury. Foley v. Northern California Power Co., 14 Cal. App. 401; 112 Pac. 467. Where death resulted from at- tempting to remove a broken electrii; wire, in an action for negligence the determina- tion of the knowledge of ilanger on the |>art of the deceased is for the jury, without any direction from tfie court unfavorable to the plaintiff. Foley v. Northern Califor- nia Power Co., 14 Cal. App. 4Ul; 112 Pac. 407. In an action for injuries received while alighting from a train, an instruc- tion, based on the injured y)asseiif4er's knowledge of the premises, and her as- sunij)tion of risk notwithstanding the de- fenilant's negligence in not lighting the premises, is properly disallowed. Teale v. Southern Pacific Co., 20 Cal. App. 570; 129 Pac. 949. It is correct to instruct the jury, that a servant assumes all of the ortlinary risks of the business in which he is em- ployed, but does not assume the risk of defective premises, machinery, or struc- tures furnished by the master, if the de- fect was either known to the master, or could have been discovered by the master by a reasonably careful inspection. Haves V. Western Fuel Co., 19 Cal. App. 634; 127 Pac. 518. Without proper evidence, it is a {lalpable invasion of the province of the jury to ask a witness whether a certain act is within the scope of an agent's au- thoritv. Waniorek v. United Railroads, 17 Cal. App. 121; 118 Pac. 947. Should not comment on rights of par- ties. An instruction that the j)laintift' is entitled to no sympathy from the jury, where they were told that the rights of the parties were to be determined by the strict rules of law, is properly refused. Parker v. Otis, 130 Cal. 322; 92 Am. St. Rep. 56; 62 Pac. 571, 927. May caution jury. It is- within the dis- cretion of the court to give an instruction cautioning against the undue influence of svmpathy. Si)ear v. United Railroads, 16 Cal. AppI 637; 117 Pac. 956. May name witness. Mentioning the names of witnesses in the instructions is not prejudicial, where there were no others than those named, and their evidence was not contradicted. Dyas v. Southern Pacific Co., 14U Cal. 296; 73 Pac. 972. Must not assume facts when. An in- struction assuming as true a fact, in re- gard to which there is no conflict in the evidence, is not erroneous (Watson v. Damon, 54 Cal. 278); nor is an instruction stating merely the law applicable to the facts jiroved, and not taking from the jury the question as to whether or not an act was done (Low v. Warden. 77 Cal. 94; 19 Pac. 235); but an instruction assuming a §608 CONDUCT OF TRIAL BY JURY. 656 fact, as to ■n'hich the evidence was con- flicting, is erroneous, as invading the prov- ince of the jury (Preston v. Kevs, 23 Cal. ]93; Caldwell v. Center, 30 Cal. 539; 89 Am. Dec. 131; Crawford v. Roberts, 50 Cal. 235; Vulicevich v. Skinner, 77 Cal. 239; 19 Pac. 424; Dean v. Ross, 105 Cal. 227; 38 Pae. 912; Williams v. Casebeer, 126 Cal. 77; 58 Pac. 380; Roche v. Baldwin, 135 Cal. 522; 65 Pac. 459; 67 Pac. 903; Estate of Keegan, 139 Cal. 123; 72 Pac. 828; Manning v. App Consol. Gold Mining Co., 149 Cal. 35; 84 Pac. 657); as is also an instruction assuming a fact to be true, and then submitting to the .jury the question whether or not such fact is true (Cahoon V. Marshall, 25 Cal. 197) ; and an instruc- tion assuming a fact favorable to a party cannot be complained of by him. Hill v. Finigan, 77 Cal. 267; 11 Am. St. Rep. 279; 19 Pac. 494. An instruction assuming a fact which is not productive of injury is not erroneous (Bradley v. Lee, 38 Cal. 362); nor, where there is no conflict in the evidence as to a fact, is an instruction assuming such fact. Baker v. Southern California Ry. Co., 106 Cal. 257; 46 Am. St. Rep. 237; 39 Pac. 610. An instruction involving an uncontradicted fact, though erroneous, is not prejudicial. Courteney v. Standard Box Co., 16 Cal. App. 600; 117 Pac. 778. Must be applicable to the facts. Re- quested instructions, inapplicable to any evidence adduced in the case, are properly refused. Courteney v. Standard Box Co., 16 Cal. App. 600; 117 Pac. 778; Shaw v. Shaw, 160 Cal. 733; 117 Pac. 1048. If there is some evidence in the case, upon which an instruction relative to contribu- tory negligence might be based, it is error to refuse it. Spear v. United Railroads, 16 Cal. App. 637; 117 Pac. 956. Refusal to give correct and pertinent instructions asked is error (Sukeforth v. Lord, 87 Cal. 399; 25 Pac. 497; Mabb v. Stewart, 133 Cal. 556); but a refusal to give an instruc- tion, purporting to be a statement of what the plaintifi: alleged in the complaint, and what the defendant denied, is not error, where such facts had been correctly stated to the jury by counsel. Cody v.* Market Street Ry. Co., 148 Cal. 90; *82 Pac. 666. Instructions are sufficient, if they lay down the correct rule of law applicable to the facts of the case (Peters v. Southern Pacific Co., 160 Cal. 48; 116 Pac. 400; Kearney v. Bell, 160 Cal. 661; 117 Pac. 925; Lonnergan v. Stansbury, 164 Cal. 488; 129 Pac. 770); but an instruction on a point not in issue should not be given. Branger v. Chevalier, 9 Cal. 351; Conlin v. San Francisco etc. R. R. Co., 36 Cal. 404; Marriner v. Dennison, 78 Cal. 202; 20 Pac. 386; Stevens v. San Francisco etc. R. R. Co., 100 Cal. 554; 35 Pac. 165; Baker v. Southern California Ry. Co., 106 Cal. 257; 46 Am, St. Rep. 237; 39 Pac. 610; Nof- singer v. Goldman, 122 Cal. 609; 55 Pac. 425; Wahlgren v. Market Street Ry. Co., 132 Cal. 656; 62 Pac. 308; 64 Pac. 993; Cahill V. Baird, 138 Cal. 691; 72 Pac. 342; Silva V. Pair, 141 Cal. 599; 75 Pac. 162. It is error to refuse an instruction that is a correct statement of the law. and ap- plicable to the case as presented by the pleadings and the evidence. Hart v. Buck- ley, 164 Cal. 160; 128 Pac. 29. Each party is entitled to instructions applicable to his theory of the case and the testimony of his witnesses (Renton v. Monnier, 77 Cal. 449; 19 Pac. 820; Hunt v. Elliott, 77 Cal. 588; 20 Pac. 132; Davis v. Russell, 52 Cal. 611; 28 Am. Rep. 647; Bueklev v. Silverberg, 113 Cal. 673; 45 Pae. 804; Eppinger v. Ken- drick, 114 Cal. 620; 46 Pac. 613; Waniorek V. United Railroads, 17 Cal. App. 121; 118 Pac. 947) ; and the judgment will not be reversed because the evidence is in- sufficient to justify the verdict upon that theory, if. upon other facts, the verdict is correct. Bueklev v. Silverberg, 113 Cal. 673; 45 Pac. 804. The refusal of instruc- tions permitting the jury to find for a greater sum than that demanded in the complaint is proper, where an amend- ment of the complaint was conditionally granted, and the plaintiff refused to com- plv with the condition. Wise v. Wakefield, lis Cal. 107; 50 Pac. 310. Should cover issues. Instructions should not be numerous, and those given should be as simple and plain as possible, and cover the issues, so that the jury may fully understand them. Estate of Keithley, 134 Cal. 9; 66 Pac. 5. In an equity case, a refusal to give instructions is not cause for reversal, where the court finds on all the issues submitted to the jury. Hewlett V. Pileher, 85 Cal. 542; 24 Pac. 781; Riley V. Martinelli, 97 Cal. 575; 33 Am. St. Rep. 209; 21 L. R. A. 33; 32 Pac. 579; and see Branger v. Chevalier, 9 Cal. 353. Should be concrete, and not abstract. An instruction on an abstract principle, as to which there is no evidence, is errone- ous, as tending to mislead the jury. People V. Jaurez, 28 Cal. 389; Tompkins v. Ma- honey, 32 Cal. 231; Mecham v. McKay, 37 Cal. 154; Bowers v. Cherokee Bob, 45 Cal. 495; Hanks v. Naglee, 54 Cal. 51; 35 Am. Rep. 67; Estate of Holbert, 57 Cal. 257; Comptoir D'Escompte v. Dresbach, 78 Cal. 15; 20 Pac. 28; Estate of Carpenter, 94 Cal. 406; 29 Pac. 1101; Estate of Calkins, 112 Cal. 296; 44 Pac. 577; Nof singer v. Gold- man, 122 Cal. 609; 55 Pac. 425; Tompkins V. Montgomery, 123 Cal. 219; 55 Pac. 997; Gately v. Campbell, 124 Cal. 520; 57 Pac. 567; Thomas v. Gates, 126 Cal. 1; 58 Pac. 315; Lemasters v. Southern Pacific Co., 131 Cal. 105; 63 Pac. 128; Cahill v. Baird, 138 Cal. 691; 72 Pac. 342; Estate of Keegan, 139 Cal. 123; 72 Pac. 828; Jones v. Gold- tree, 142 Cal. 383; 77 Pac. 939; Meyer v. Foster, 147 Cal. 166; 81 Pac. 402; Ward 657 INSTRUCTIONS — WHAT PROPER. |60g Land etc. Co. v. Mapes, 147 Cal. 747; 82 Pac. 426. An instruction as to the policy of the law in reference to any particular question, is projierly refused (Ward Land etc. Co. V. Mapes, "l47 Cal. 747; 82 Pac 426); as are also instructions onunciatinsr the doctrine of caveat emptor, inappli- cable to the case. Merguire v. O'Donnell, 103 Cal. oO; 36 Pac. 1033. Should not be argumentative. Argu- mentative instructions arc improper (Mor- ris V. Lachman, 68 Cal. 109; 8 Pac. 799; Mabb V. Stewart, 133 Cal. 556; 65 Pac. 1085; and see People v. McNamara, 94 Cal. 509; 29 Pac. 953; People v. Verenescneck- ockockhoir. 129 Cal. 497; 58 Pac. 156); but whore they are not ]irejudicial to the ap- pellant's rights, they will not be held erroneous. People v. Stanton, 106 Cal. 138; 39 Pac. 525. Inconsistent or contradictory instruc- tions. Contradictory and inconsistent in- structions are erroneous (McCreery v. Everding, 44 Cal. 246; Bank of Stockton V. Bliven, 53 Cal. 708; Harrison v. Spring Valley Hydraulic Gold Co., 65 Cal. 376; 4 Pac. 381; Haioht v. Vallet, 89 Cal. 245; 23 Am. St. Eep. 465; 26 Pac. 897); and cannot be harmonized by the declaration of the court that one instruction means the same thing as the other. Harrison v. Spring Valley Hydraulic Gold Co., 65 Cal. 376; 4 Pac. 381. Errors in giving instruc- tions, and in refusing instructions which correctly state the law, are not cured by contradictory and confusing statements of the court in its oral charge. A^'allens v. Tillman, 103 Cal. 187; 37 Pac. 213. ■ Error in one of two contradictory instructions is not cured by the other instruction: it is impossible to determine on which instruc- tion the .jury acted. Chidester v. Con- solidated People's Ditch Co., 53 Cal. 56; Sappenfield v. Main Street etc. E. R. Co., 91 Cal. 48; 27 Pac. 590. Where the instruc- tions on a material point are contradictory, it is impossible for the jury to decide which should prevail, and equally impos- sible to know that they were not influenced by the erroneous instruction. Brown v. McAllister, 39 Cal. 573; Aguirre v. Alex- ander, 58 Cal. 21; Sappenfield v. Main Street etc. R. R. Co., 91 Cal. 48; 27 Pac. 590. The fact that contradictory instruc- tions were given at the request of the appellant is not material. Wall v. Mar- shutz, 138 Cal. 522; 71 Pac. 692; and see Williams v. Southern Pacific R. R. Co., 110 Cal. 457; 42 Pac. 974. Inconsistent instruc- tions that cannot mislead the jury, and that are not so contrailictory but that the jury can know by which instruction they should be guided, do not constitute preju- dicial error. James v. E. G. Lyons Co., 147 Cal. 69; 81 Pac. 275. An instruction, that it is the duty of the railroad company to maintain sufficient light at its stations, is not in conflict with an instruction that 1 Fair. — 42 it is its duty to keep the station properly lighted. Teale v. Southern Pacific Co., 2*0 C.-il. App. ."7(1; 12!) Pa<'. '.Hi*. MLsleading instructions. Tt is not error to ri'fuse an instruction which cannot aid the jury, and wjiich might mislead- them. Estrella Vineyard Co. v. Hutlcr, 125 Cal. 232; 57 Pac. 980. The test is, not whether it is erroneous, but whether it is mislead- ing. Briggs v. Hall, 2U Cal. App. 372; 129 Pac. 288. Irrelevant instructions are not necessarily erroneous, unless they tend to mislead the jury. George v. Los .Xngeles Rv. Co., 126 Cah 357; 77 Am. St. Rep. 184; 46 L. R. A. 829; 58 Pac. 819. A mislead- ing and erroneous instruction is properly refused (Low v. Wanlon, 77 Cal. 94; 19 Pac. 235); and an instruction as to war- ranty, where the evidence shows a much broader and more particular warranty, and the granting of it would confuse and mis- lead the jury by diverting their attention from the other evidence in the case, is also properly refused. Fo.\ v. Stockton etc. Agricultural Works, 83 Cal. 333; 23 Pac. 295. The use of the word "plaintiff," in- stead of "decedent," in an instruction, which could not mislead the jury, is not reversible error (O'Callaghan v. Bode, 84 Cal. 489; 24 Pac. 269); neither is the use of the word "testimony," instead of "evi- dence." Mann v. Higgins, 83 Cal. 66; 23 Pac. 206. Modification of instructions. The modi- fication of instructions, so as to state the law correctly, is ]iroiier. Nichol v. Lau- meister, 102* Cal. 658; 36 Pac. 925; Boyce V. California Stage Co., 25 Cal. 460; King V. Davis, 34 Cal. 100. The modification of an instruction, requested by the defendant, cannot be objected to by him, where the instruction itself is not proper (Harring- ton V. Los Angeles Rv. Co., 140 Cal. 514; 98 Am. St. Rep. 85; i63 L. R. A. 238; 74 Pac. 15); and the modification of an in- struction, by striking out the phrase, "and from your general knowledge," after the dependent clause, "If you find from the evidence," is not error: the jury take into consideration their knowledge, whether in- structed to do so or not. Baker v, Borello, 136 Cal. 160; 68 Pac. 591; Beveridge v. Lewis, 137 Cal. 619; 92 Am. St. Rep. 188; 59 L. R. A. 581; 67 Pac. 1040; 70 Pac. 1083; and see Cederberg v. Robison, 100 Cal. 93; 34 Pac. 625; Butler v. Ashworth, 102 Cal. 663; 36 Pac. 922. It is not ma- terial that the instruction given is not in as accurate and precise language as that asked, where it is substantially the same. Kahn v. Triest-Rosenberg Cap Co., 139 Cal. 340; 73 Pac. 164. An instruction which could not be given without modification is properly refused. Garlick v. Bowers, 66 Cal. 122; 4 Pac. 1138. Need not be repeated. An instruction is jiropcrly refused, whore, so far as it is correct, it is fully covered by other in- S608 CONDUCT OF TRIAL BY JURY. 658 structions. Hayes v. Western Fuel Co., 19 Cal. App. 634;' 127 Pac. 518; War.l Land etc. Co. V. Mapes, 147 Cal. 747; 82 Pac. 426; People v. Sampo, 17 Cal. App. 135; 118 Pac. 957. Refusal to use the precise language of a requested instruction is not error, where the law is substantially given in the charge of the court. Clark v. Ben- nett, 123 Cal. 275; 55 Pac. 908; Cook v. Los Angeles etc. Ry. Co., 134 Cal. 279; 66 Pac. 306. An error in refusing to give an instruction is cured, where the same ground is covered in an instruction subse- quently given. Manning v. Dallas, 73 Cal. 420; 15 Pac. 34. There is no prejudicial error in refusing instructions that have been substantially embodied in the charge given, or that have been rendered imma- terial by the special findings of the jury to the contrary, or that call for the errone- ous assumption of facts. O'Connell v. United Railroads, 19 Cal. App. 36; 124 Pac. 1022. Where part of the instructions clearly informed the jury that carelessness or unskillfulness must have attended all the alleged acts of the defendant in order to make him liable, there is no necessity of repeating this matter in every part. Mervin v. Cory, 145 Cal. 573; 79 Pac. 174. Failure to give further or more explicit instructions is not error, unless they were requested, where those given substantially cover the particular point involved. Rice V. Whitmore, 74 Cal. 619; 5 Am. St. Rep. 479; 16 Pac. 501; Nichol v. Laumeister, 102 Cal. 658; 36 Pac. 925. Erroneous instruction refused. An in- struction, erroneous in part, is properly refused. Marriner v. Dennison, 78 Cal. 202; 20 Pac. 386; Smith v. Richmond, 19 Cal. 476; Preston v. Keys, 23 Cal. 194; Williams v. Casebeer, 126 Cal. 77; 58 Pac. 380. Must be construed as a whole. Instruc- tions must be construed together. Peters V. Southern Pacific Co., 160 Cal. 48; 116 Pac. 400; Kearney v. Bell, 160 Cal. 661; 117 Pac. 925; Lonnergan v. Stansbury, 164 Cal. 488; 129 Pac. 770. They are to be read and taken as a whole; they are not necessarily erroneous because, taken sepa- rately, some of them may fail to enun- ciate propositions of law in precise terms and with legal accuracy; and they are suffi- cient if they give the jury a fair and just notion of the law upon the point dis- cussed (Stephenson v. Southern Pacific Co., 102 Cal. 143; 34 Pac. 618; 36 Pac. 407; People V. McDowell, 64 Cal. 467; 3 Pac. 124; People v. Turcott, 65 Cal. 126; 3 Pac. 461; Davis v. Button, 78 Cal. 247; 18 Pac. 133; 20 Pac. .545; People v. Lee Chuck, 78 Cal. 317; 20 Pac. 719; Monaghan v. Pacific Rolling Mill Co., 81 Cal. 190; 22 Pac. 590; Murray v. White, 82 Cal. 119; 23 Pac. 35; Doty v. O'Neil, 95 Cal. 244; 30 Pac. 526; Hanscom v. Drullard, 79 Cal. 234; 21 Pac. 736; Nichol v. Laumeister, 102 Cal. 658; 36 Pac. 925; People v. An- derson, 105 Cal. 32; 38 Pac. 513); and if the law is correctly stated as applicable to the case, the jury will be deemed to have given full consideration to each and every proposition of law laid before them (Feliz v. Feliz, 105 Cal. 1; 38 Pac. 521); and a judgment will not be reversed, sim- ply because particular instructions, taken alone, may not embody all the law appli- cable. Anderson v. Seropian, 147 Cal. 201; 81 Pac. 521; People v. Jackson, 138 Cal. 462; 71 Pac. 566. Instructions which, taken in connection with other instructions given, could not have misled the jury, will not be held erroneous on appeal. Thomas v. Gates, 126 Cal. 1; 58 Pac. 315; Wilson v. Southern Pacific R. R. Co., 62 Cal. 164. Where the jury, taking the in- structions as a whole, must have under- stood the words "safe and suitable" as meaning "reasonably safe and suitable," an instruction that an employer is bound to furnish "safe and suitable" appliances is not erroneous. Wall v. Marshutz, 138 Cal. 522; 71 Pac. 692. The omission of the word "preponderance," in an instruc- tion, in a single instance, is not erroneous, where the law relating to burden of proof was repeatedly called to the attention of the jury (Humphrey v. Pope, 1 Cal. App. 374; 83 Pac. 223; People v. Morine, 61 Gal. 372) ; nor is an instruction as to admis- sions in the pleadings erroneous. Dyas v. Southern Pacific Co., 140 Cal. 296;" 73 Pac. 972. Where a party asks an instruc- tion on an abstract proposition, he must take the risk of its being correct in all its parts; and where there is no testimony as to part of the facts on which the in- struction was predicated, its refusal is not error. Thompson v. Paige, 16 Cal. 77. Where all the instructions, taken together, correctly give the law on the subject, a party objecting is not prejudiced by a verbose instruction. Estate of Black, 132 Cal. 392; 64 Pac. 695. When court may direct verdict. Where there is no conflict in the evidence, the court may properly direct a verdict (Mar- tin V. Ward, 69."Cal. 129; 10 Pac. 276; Chenery v. Palmer, 6 Cal. 122; 65 Am. Dec. 493; Page v. Tucker, 54 Cal. 121); other- wise it can instruct only as to the law. Estate of Everts, 163 Cal. 449; 125 Pac. 1058. The direction of a verdict is justi- fied, not merely where there is no conflict in the evidence, but also where the evi- dence is such that it is clearly insufficient to support a verdict in favor of the party against whom the direction is given, un- less the circumstances of the case indicate that upon another trial the evidence may be materially different. Lacey v. Porter, 103 Cal. 597;' 37 Pac. 635. It is proper for the court, after Lhe plaintiff's evidence is closed, to direct a verdict for the defend- ant, where the evidence would be insuffi- 659 INSTRUCTIONS — WHAT PROPER. 608 cient to sustain a verdict for the plaintiff, if found. ('hani[)ion Golii Mininj^ Co. v. Champion Mines, 1(54 Cal. 20.'); 12S Pac. 315. The correctness of the dire(;tion of a verdict dejicnds on whether there is any •evidence \vhi<'h would authorize a different verdict; and if there is any conflict in the evidence, or if different inferences of fact may be drawn from the evidence, it is the function of the jury to determine the issue; but if, upon all the evidence, only one conclusion or finding can be made, it is immaterial whether the .jury make that conclusion or finding by direction of the court or upon their own deliberation. Los Angeles Farming etc. Co. v. Thomjison, 117 Cal. 594; 49 Pac. 714; and see Levitzky v. Canning, 33 Cal. 299; O'Connor v. With- €rby. 111 Cal. 523; 44 Pac. 227; Wilson v. Alcatraz Asphalt Co., 142 Cal. 182; 75 Pac. 787. An instruction, that if the jury think there is some evidence in favor of the plaintiff's side of the case, whether little or great, it is their duty to find in his favor, is not proper in any conceivable case. Bunting v. Saltz, 84 'Cal. 16S; 24 Pac. 167. An instruction asking for a verdict on one matter, and entirely ignor- ing other consirj of the case loKicnlly deducibla from such evi- dence. People v Ue.st, 39 <'ul. 091; I'eople v. McCauIey, 1 Cal. 3«5; People v. Kuberts Cal. 217; People v. Arnold, 15 Cal. 4«2; People v. Sanchez, 24 Cal. 28; People v. King, 27 Cal. 514; 87 Am. Dec. 95; People v. Burns. 30 Cal. 207; People v. Williams, 32 Cal. 284; Fair- child V. Culiforniu Stase Co., 13 Cal. 599 ; Thomp- son v. Paige, 16 Cal. 77; Fowler v. Smith, 2 Cal. 39; Uenham v. Howe, 2 Cal. 387; 56 .Aiii. Dec. 342; Uranger v. Chevalier, 9 Cal. 353. Where no question of jurisdiction of the court over the action is raised by the pleudiuKs, it is error to instruct the jury, "that, if they helieve a certain fact, they must find for the defendant, as the existence of that fact will establish a want of jurisdiction over the case," because, upon the pleadiiiKS, such a verdict would bar another ac- tion, if rendered against plaint itT in pursuance of such an instruction. Fairbanks v. Woodhouse, 6 Cal. 433. It is not error to refuse an instruc- tion not warranted by the pleadings (Thompson V. Lee, H Cal. 275); nor when there is no evi- dence on the question of fact embraced in the instruction (People v. Hurley, 8 Cal. 390); nor when there is only such evidence as is plainly in- sufficient to establish it (Selden v. Cashman. 20 Cal. 5(5; 81 Am. Dec. 93): nor which assumes a fact to e.xist respecting which evidence has been introduced (Preston v. Keys, 23 Cal. 193); nor which embraces a question which comes properly before the court, and not before the jury (Rranger V. Chevalier, 9 Cal. 353): nor when an instruc- tion is erroneous on its face, even though the error would be insufficient to reverse the judg- ment. Vislier v, Webster. 13 Cal. 58. 2. Instructions upon questions of fact. The jury are the judges of the lact.s. and it is error for the court to assume, in its instructions to the jury, that a certain fact exists, and then submit to them the question whether or not it does exist. Cahoon v. Marshall, 25 Cal. 198; Cald- well V. Center, 30 Cal. 539: 89 Am. Dec. 131. If the court, in an instruction, assumes the exist- ence of a fact, (and the assumption in the con- dition of the case could not be productive of injury), the judgment, for this reason, will not be reversed. Bradley v. Lee. 38 Cal, 360. The right to "state the testimony" does not authorize an expression of opinion by the court. Seligman V. Kalkman, 8 Cal. 216; Battersby v. Abbott. 9 Cal. 565; Pico v, Stevens, 18 Cal. 376: People V. Dick, 32 Cal. 213; Treadwell v. Wells Fargo & Co., 4 Cal. 260. But if the answer admits the facts stated in the complaint, the court may di- rect the jury to find for plaintiff. Kuhland v. Sedgwick, 17 Cal. 123; Blood v. Light. 31 Cal. 115. 3. What should not be left to jury. It is error for the court to submit to a jury the question of the legal etTect of written documents in evi- dence. Carpentier v. Thirston, 24 Cal. 268; Luckhart v. Ogden, 30 Cal. 548. If a contract is to be performed within a reasonable time, the question, "What is a reasonable time?" is one of law, and must be determined by the court. Luckhart v. Ogden, :!0 Cal. 548. i. Conflicting instructions. Where instructions on a material point are contradictory, it is im- possible for the jury to decide which should pre- vail, and it is equally impossible, after the ver- dict, to know that the jury was not intiuenced by that instruction which was erroneous, as the one or the other must necessarily be, where the two are repugnant. In every such case the ver- dict must be set aside. Brown v. McAllister, 39 Cal. 577; Clark v. McElvv, 11 Cal. 161; Yonge v. Pacific Mail S. S. Co., 1 Cal. 354: People v. Campbell. 30 Cal. 312. It seldom occurs that a single instruction, given for the purpose of pre- senting the law upon a point arising upon more than one fact, contains all the qualifications and provisos that would be necessary if no other instructions were given; but it is always in- tended that such instruction shall be read to- gether with the other instructions upon the same point, or those involving a consideration of the same facts. Bradley v. Lee. :i8 Cal. 365. In- structions will be construed with reference to the evidence. Brumagim v. Bradshaw. 39 Ca.. 24. §608 CONDUCT OF TRIAL BY JURY. 660 5. Instiuctions substantially given. If the court has already properly instructed the jury upon a given point, it is not error to refuse another instruction upon the same point. Belden V. Henriques, 8 Cal. 87; Davis v. Perley, 30 Cal. 630; People v. King, 27 Cal. 5U9, 87 Am. Dec. 35; People v. \Vil!iams, 32 Cal. 280. But the reasons for the refusal should be stated, so that the jurv mav not be misled. People v. Ramirez, 13 Cal." 172:" People v. Hurley, 8 Cal. 390. 6. Instructions substantially correct. If the instructions, taken as a whole, fairly submit the case to the jury, the verdict will not be disturbed because some instructions were refused which could properly have been given, or that some of those given are subject to verbal criticism. BrooiiS V. Crosby, 22 Cal. 42. 7. Time at which instructions are requested. A rule of court which requires counsel to file and submit to the court any instructions they may offer, before the argument is closed, does not operate where the cause is submitted without argument. Tinney v. Eudicott, 5 Cal. 102. If there is a rule of court requiring instructions to be handed to the judge by a certain time in the progress of the trial, it is not error to refuse to give instructions not handed to the judge in time. Waldic v. Doll, 29 Cal. 556. 8. Instructions in particular actions. Account stated. In an action on an account stated, where the only evidence was that of a witness, who testified that defendant, on presentation of the account, admitted it to be correct, and promised to pay it, and the court charged the jury that, if they believed the testimony of the witness, they must find for the plaintiff the amount claimed, and they so found, it was held, that the instruction did not prejudice defendant, as but one verdict could have Vjeen rendered under the evidence. Terry v. Sickles, 13 Cal. 427. By or against administrators. In an action by an administrator against defendant, for conver- sion of the property of-the estate, under § 116 of the statute to regulate the settlement of estates, the proof, as to the right or title or possession of plaintiff, and the taking or interference by defendant, being conflicting, it is error to in- struct the jury that a mere demand on the de- fendant, and refusal by him to surrender the property, is sufficient to charge him with a con- version. Beckman v. McKay. 14 Cal. 250. In an action against . an administrator, the court must, if requested, charge the jury as to the statute time within which the action could be broueht when the claim is rejected. Benedict v. Hoegin. 2 Cal. 385. Contract. In an action on a contract of sale of cattle, to be delivered within "three weeks, at the furthest," the consideration-money being paid, complaint, with the common counts, averred the breach of the agreement by failure to de- liver the cattle. It was held, that it was not error in the court below instructing the jury, that if defendant did not have the cattle ready for delivery at the time mentioned in the con- tract, they should find for plaintiff; and in assessing damages, they might find the purchase- money, with ten per cent interest, or the highest market price of the cattle to the time of trial. Maher v. Riley, 17 Cal, 415. Where the vendee of goods is to pay a part of the purchase-money to the creditors of his vendor, this creates no trust in goods sold in favor of such creditors; for this reason, in an action to recover such goods, the following instruction to the jury is improper: "If the jury believe from the testi- mony that the agreement between Stevens and Markling, the vendors of the plaintiff, was that the plaintiff was to pay certain of the debts of his vendors out of said goods, then that such sale, as against the other creditors of the ven- dors, is fraudulent." Wellington v. Sedgwick, 12 Cal. 469. Where defendants were sued as fac- tors, and no claims for commissions, etc., were set out as a counterclaim, it was held error for the court to instruct the jury that it was for them exclusively to say what amount the plain- tiff was entitled to recover, and that thf de- fendants were liable for the value of the goods Bt the time of demand. Lubert v. Chauviteau. 3 Cal. 463; 58 Am. Dec. 415. In an action on guaranty, it is error, in terms, to charge the jury if they find for the plaintiff, to assess as damages the amount of the penalty fixed in the guaranty, yet if the plaintift"s damages, if any, must, in any event, exceed the penalty, the di- rection must be regarded as limiting the verdict, and the defendant is not injured by the instruc- tion. Jones V. Post, 6 Cal. 102. Ejectment. In ejectment for land claimed as- a homestead, where the husband alone had exe- cuted a deed to defendant, there was evidence tending to show that the premises were never occupied by plaintiffs with the intention of mak- ing them the homestead, and also evidence tend- ing to prove an abandonment of their occupancy, and a residence on other property as that of the family. The court below submitted a series oT questions to the jury for a special verdict, the first of which was: "Did the plaintiffs ever dedicate and set apart the real estate described in the complaint as a homestead, by living upon. it with the intention to so dedicate it?" and told the jury if they answered this question in the negative, the answer would constitute their en- tire verdict: but if they found in the affirmative, they should then proceed to answer the other questions. On appeal, it was held that such di- rection was proper, as a negative answer to this, question was conclusive against a recovery, and that such directions are convenient in practice,, and no abuse of discretion. Broadus v. Nelson, 16 Cal. 79» Where plaintiff asked tlie court to instruct the jury, "that lapse of time does not constitute an abandonment, but that it consists- in a voluntary surrender and giving up of the thing by the owner, because he no longer desires, to possess it, or thereafter to assert any right or dominion over it'; and the instruction was given with the qualification that lapse of time- constitutes the material element in the question of abandonment. It was held that, though it would be more exact to say that lapse of time constitutes a material element to be considered, in deciding the question of abandonment, but that the instruction given and the qualification are, taken in connection, the same in effect, Lawrence v. Fulton, 19 Cal. 683. The court having admitted in evidence, as sufficiently proven. the mesne conveyances through which plaintifiT traced title, the defendants being mere tres- passers, charged the jury "that the written evi- dence of title, together with the admissions of the parties, authorized them to find for the plain- tiff, since the execution of the papers had been. passed upon by the court." It was held, that it was no objection to this instruction, that it did. not leave the execution and delivery of the con- veyances to the jury; that the sufficiency of their execution was a matter addressed solely to the court, and that, no question being raised during the trial as to their delivery, and no evi- dence being offered to rebut the presumption of delivery arising from their possession by plain- tiff, the instruction amounted only to an an- nouncement of the law as to the effect of the- conveyances and of the admissions of the de- fendants. Stark V. Barrett, 15 Cal. 361. It is error for the court to instruct the jury, that plaintiff cannot recover, unless from the evi- dence the jury can specifically fix and establish the eastern boundary line of the grant under which plaintiff claimed, when it appears from the- evidence that the land in controversy is within that boundary line. Seaward v. Malotte, 15 Cal. 307. Where the defendants deny the title of plaintiff, and set up ownership in themselves, it is not error to instruct the jury that the onlr question for them to determine is as to who has the better right to the premises. Such instruc- tion does not imply that plaintiffs can recover, even if they do not establish, prima facie, a title. Busenius v. Coffee, 14 Cal. 91. In ejectment, where the title is of record and wholly docu- mentary, the clerk may declare the effect of the papers given in evidence. McGarvey v. Little, 15 Cal. 27. In an action for a portion of a tract of land, both parties relying on possession, and the defendant proving a prior possession by actual inclosure of the entire tract, held, it was error to instruct the jury that the defendant's posses- sion was not valid, unless in conformity with the pre-emption laws of the United States, or the- possessory laws of this state. Bradshaw v. Treat <861 INSTRUCTIONS — WUAT PROPER. §608 ■6 Cal. 172. When !\ private survey is admiticil as a diaKram, but mil us evidence, it is the duty of the court to clearly explain to the jury the purpose and effect of its admission. Kose v. Davis, 11 Cal. 133. An instruction that they must take the grant and map toeelher, and if they believe the land in controversy within the Kra'nt, as explained hy the map, they will find for the plaintiff. Held to be correct. Ferris v. Coovcr, 10 Cal. 589. Fraud. In an action where one of the issues raised is a (luestion of fraudulent intent in the sale or disposition of property, the fraudulent in- tent is a question of fact alone, to be left solely to the determination of the jury, and in such ■cases it is error for the court to instruct the jury as to the effect or force of the evidence ujjon that iiuestion; or to instruct a jury that if they have a doubt of the euilt of the party charged ■with the fraud they must find in his favor. Is- sues of fact in civil cases are determined by a preponderance of testimony, and this rule ap- plies as well to cases of fraud as to any other. Ford V. Chambers, 19 Cal. 143. Upon the issue of fraud, in an application of an insolvent to be discharged from his debts, where it was alleged that the applicant had made and recorded a sham deed of his property before his application, and had omitted the deed from his schedule. Held, that it was error to instruct the jury, "that, to find the charge of fraud sustained, they must be- lieve the deed made with the intent to defeat, hinder, or delay creditors, to have been actually delivered to the grantees; that proof of record was no proof of delivery," etc., the fraud being as complete without the delivery as with it. Pisk V. His Creditors, 12 Cal. 281. If there is no dispute as to the facts, and the law declares a transaction fraudulent, it is not a question for the jury. The court in such case may direct the .jury how to find, or set aside the verdict if they find to the contrary. Chenery v. Palmer. 6 Cal. 119; 6.5 Am. Dec. 49.1; McDaniel v. Baca, 2 Ca!. 326; r,6 Am. Dec. 339. Malpractice. In an action against surgeons "for malpractice, by which amputation became necessary." the court charged the jury "that if they believed from the evidence that the defend- ants were guilty of negligence, carelessness, or ■inattention " in their treatment of plaintiff's wounds, by which he was caused great bodily •pain and suffering, the plaintiff was entitled to a "verdict." The instruction was held erroneous, be- cause the action was not founded upon "bodily pain or suffering." Moor v. Teed, 3 Cal. 190. Mining claims. In an action for a mining claim, where the (i. CODE COMMISSIONERS' NOTE. In an ac tion against an insurance company, it is not error for the court to permit the jury to take to their rooms the "sworn statement of plaintiff as to his losses." Clark v. Pha-nix Ins. Co.. 36 Cal. 176: " Se.vton V. Montgomery County etc. Ins. Co.. 9 Bnrb. 200; Xewmarke v. Liverpool etc. Ins. Co., 30 Mo. 160; 77 Am. Dec. 608; Parsons on Mer- cantile Law, p. 536. ?§ 614, 615 CONDUCT OF TRlAL BY JURY. 664 ■officer having them under 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 person the state of their deliberations, or the verdict agreed upon. Three fourths, agreement of. See Const., art. I, ^ special oath to the officer taking charge 5 7. Legislation § 613. 1. Enacted March 11, 1873 ; based on Practice Act, § 166, which read: "After hearing the charge, the jury may either decide in court, or retire for deliberation. If they retire, they shall he kept together in a room provided for them, or some other convenient place, under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court. The ofhcer shall, to the utmost of his ability, keep the jury together, separate from other persons; he shall not suffer any communi- cation to be made to them, or make any himself, unless by order of the court, e.Kcept to ask them if they have agreed upon their verdict; and he shall not, before the verdict is rendered, com- municate to any person the state of their delib- erations, or the verdict agreed upon." When § 613 was enacted in 1872, it read as at present, except that (1) it had the word "they" instead of "at least three fourths of them," in the first sentence, (2) in the second sentence (a) it did not contain the words "or three fourths of them," and (b) had the word "their" instead of "a," be- fore "verdict." 3. Amended by Code Amdts. 1880, p. 10. Oath of oflacer in charge of jury. It is not necessary for the court to administer of the jury upon its retirement for delib- eration. Boreham v. Byrne, 83 Cal. 23; 23 Pac. 212. When jury must be kept together and the con- sequences of an unauthorised separation. See note 43 Am. Dec. 75. Separation of jury. See note 103 Am. St. Rep. 155. Presence of officer in jury-room during delih- erations of jury. See note 36 Am. Rep. 441; 8 Ann. Cas. 652. Prejudice of officer as disqualifying him from acting as custodian of jury. See note Ann. Cas. 1912C, 882. Discharge of jury without verdict. See note 1 Am. Dec. 176. Delivery of food to jurymen after retiring to consider verdict. See note 16 Am. Kep. 454. Communication to jury by custodian or other court officer as ground for new trial. See note 13 Ann. Cas. 522. Private communication by trial judge with jury during deliberations as ground for new trial. See note 16 Ann. Cas. 1141. Effect of judge communicating with jury not in open court. See note 17 L. R. A. (N. H.) 6U9. Number and agreement of jurors necessary to verdict. See note 43 L. R. A. 34. § 614. May come into court for further instructions. After the jury have retired for deliberation, if there be a disagreement between them as 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. the parties or their counsel, is error. Eed- man v. Gulnac, 5 Cal. 148. Holidays, Sundays, non-judicial days, etc. In- structions may be given to juries deliberating on. Ante, § 134, subd. 1. Legislation § 614. Enacted March 11, 1873, in language of Practice Act, § 168, except that the latter had the word "shall" instead of "must." Refusal to instruct, effect of. Where the jurj- return into court, and ask for in- structions on a particular point, a refusal is not error, where they do not desire all the instructions read, and the court directs them to follow the instructions already given. Cockrill v. Hall, 76 Cal. 192; 18 Pac. 318. Instructions in absence of parties or counsel. To allow the jury to come into court after they have once retired, and to give them instructions, in the absence of Court should not try to influence jury. Where the jury return to the courtroom and report that they cannot agree, it is prejudicial error for the court, after learn- ing that they stand eight to three, to make it appear to them that the three, or one of the three, should yield to the eight. Mahoney v. San Francisco etc. Ey. Co., 110 Cal. 471; 42 Pac. 968; 43 Pac. 518. Necessity that further instructions requested by jury be given in open court. See note 14 Ann. Cas. 514. Necessity that further instructions to jury after retirement be given iu presence or with consent of counsel. See note 17 Ann. Cas. 536. CODE COMMISSIONERS' NOTE. Redman v. Gulnac, 5 Cal. 148. § 615. Proceedings if juror becomes sick. If, after the impaneling of the jury, and before verdict, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case the trial may proceed with the other jurors with the consent of the parties, or another juror may be sworn and the trial begin anew ; or the jury may be discharged and a new jury then or afterwards impaneled. 665 VERDICT NOT RENDERED — SEALED — POLLING JURY. §§ 616-618 Legislation S 615. 1. Knactod March n, 1872 : tice Act and oriRinal code section to the indica- based on I'rartiop Act, § 164, which had the words tivc "beeonu'R," and (2) adding the words ''wilh "a new jnry" instead of "another juror." the consent of the parties." 2. Amendment by Stats. 1901, p. 140- un- constitutional. See note ante. 5 .'> Withdrawal of a Juror. See notes 78 Am. St. 3. Amended by Stnts. lo'OT. p. 714. fl) Hep. 7H1 ; 4« L. K. A. 43'2. changing the subjunctive "become" of the Prac- § 616. When prevented from giving verdict, the cause may be again tried. In all eases Aviiere the jury are diseharfred. or i)revented from ^'iv- ing a verdict, by reason of accident or other cause, durinf,' the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may direct. Legislation « 616. Enacted March 11, 1872; (2) the word "shall" instead of "may," before based on Practice Act, § 169, which had (1) the "direct." word "a" instead of "the," before "jury," and § 617. While jury are absent, court may adjourn from time to time. Sealed verdict. 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 purpose connected with the cause submitted to the jury, until a ver- dict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agree- ment during a recess or adjournment for the day. Legislation § 617. 1. Enacted March 11, 1872; Amendment by jury of sealed verdict. See based on Practice Act, § 170, which had (1) the note 5 Ann. ('as. 394. words "shall nevertheless be deemed open" in- Right of clerk or attorney to receive verdict in stead of the words "is nevertheless open." and absence of trial Judge. See note 16 Ann. Gas. 90. (2) a final sentence, reading, "A final adjourn- /irt-r^T. n/-vi.»-««-rr.<-.T,^»T.r,^-,. ..t«™ ,.., ment of the court for the term shall discharge CODE COMMISSIONERS' NOTE. When a jury the jury." When enacted in 1872, the section ^Jf in.sti mleil to brin- m a sealed verdict, and. was cha"nged to read as at present, except for the ""f ?«>•''.'•'"« upon the verdict, Ihey seal it up final sentence, in which the words "shall dis- '"","", ^V"^: " '" the officer in charge of them, the charge" were changed to "discharges." clerk being absent, and request him to give it to 2. Amended bv Code Amdts. 1880, p. 10, the "je clerk, which is done, and after the meeting omission of the final sentence, supra, being the "^ ^he court the following morning the verdict onlv change. "^ opened in the presence of the jury and read by the clerk, without exception, it is not an error Formerly, adjournment for term dis- sufficient to warrant a new trial. The posses- Charged jury. The adjourntnent of court ^j.- Xllln'lr\^':Vnr\ HJet'as^f"u \ld for the term discharged the jury, and been directly delivered to the clerk. Nor will hence, where the trial had been adjourned it make any difference, when the names of the to a certain day, and before that dav the i!:!u"!L^''''^,t not called, and they were not asked , ,. J ., X • T " n whether they had agreed upon their verdict court adjourned the term sine die, and where the parties were present, and took an ex- began a new term on the dav the trial was ception at the time; and where it is not pretended adjourned to, it had no poWer to take up ^^"^ ^^^, ""^u"^ entered differs from one sealed ,,•:..,.',.. -i , r, -c "P- or that the result is in any respect affected the trial at such time. Johnson v. Pacific by the omission. The opportunities of tamper- Cement Co., 50 Cal. 648. ing with jury after separation are so numerous. Delivery Of sealed verdict made how. and in important cases the temptation is so great, rrii IT n 11 T i 4. 4.i,„ ^"^ the ability of detection so slight, as to make The delivery of a sealed verdict to the it a matter of grave doubt whether sound policy coroner, with the request that he deliver does not require an adherance to the verdict as it to the clerk, is not objectionable. Paige sealed, even as against a subsequent dissent of V. O'Neal, 12 ckl. 483. Zl 483"'"'' ' '"°"- ^^'^' "^^ °^"'^- ^^ § 618. Verdict, how declared. Form of. Polling the jury. When the jury, or three fourths of them, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, and the verdict ren- dered by their foreman; the verdict must be in writing, signed by the fore- man, and must be read by the clerk to the jury, and the inquiry made Avhether 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 disagree- ment be expressed, the verdict is complete and the jury discharged from the case. 619 CONDUCT OF TRIAL BY JURY. 666 Verdict received on non-judicial day. Ante, § 134. Legislation § 618. 1. Enacted March 11, 1872; "based on Practice Act, §§ 171, 173, which read: "§ 171. When the jury have agreed upon their verdict, they shall be conducted into court by the officer having them in charge. Their names shall then be called, and they shall be asked by the court, or the clerk, whether they have agreed upon their verdict; and if the foreman answer in the affirmative, they shall, on being required, declare the same." "§ 173. When the verdict is given, and is not informal or insufficient, the clerk shall immediately record it, in full, in the min- utes, and shall read it to the jury, and inquire of them whether it be their verdict. If any juror disagree, the jury shall be again sent out ; but if no disagreement be expressed, the verdict shall he complete, and the jury shall be discharged from the case." When enacted in 1872, § 618 read: "When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict ren- dered by their foreman. The verdict must be in writing, signed by the foreman, and must be read l)y the clerk to the jury, and the inquiry made whether it is their verdict. If any juror dis- agrees, they must be sent out again ; but if no disagreement be expressed, and neither party re- quires the jury to be polled, the verdict is com- plete and the jury discharged from the case. 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 any one answer in the negative, the jurv must again be sent out." 2. Amended by Code Amdts. 1880, p. 10. Signature and consent to verdict. The verdict is signed by the foreman only, yet it must be concurred in by all the other jurors. Eeynolds v. Harris, 8 Cal. 617. The assent of the jury must be ex- pressed by the foreman, and his consent is conclusive upon all, unless disagreement is expressed at the time. Blum v. Pate, 20 Cal. 69. Findings of the jury on special issues are ineffective, and cannot control the general verdict, unless signed by the jury as a whole or by their foreman; and the' failure of the party, against whom the § 619. Proceedings when verdict is Bounced, if it is informal or insufficient it may be corrected by the jury under may be again sent out. Legislation § 619. Enacted March 11, 1872; based on Practice Act, § 172. which read: "If the verdict be informal, or insufficient, in not cover- ing the whole issue or issues submitted, the verdict may be corrected by the jury, under the advice of the court, or the jury may be again sent out." Court may instruct jury to amend ver- dict. The court may instruct the jury to amend their verdict as to its form, not affecting the substance, and in such man- ner as to be unexceptionable in law. True- tody V. .Jacobson, 2 Cal. 269. A verdict for half of the property sued for, not responding to the issues, is a nullity: the court should direct a finding as to the other half. Muller v. Jewell, 66 Cal. 216; 5 Pac. 84. Uncertainty in verdict. Where the ver- dict fixes a measurement different from that referred to in the pleadings, and •which is ^uncertain, the court is not at special issues are found, to object to the finding being received, is not a waiver of the defect. Greenberg v. Hoff, 80 Cal. 81; 22 Pac. 69. Where questions, upon the contest of the probate of a will, are pro- pounded to a jury and answered by them, such questions and answers, where they constitute the ultimate facts to be found, and cover the issues growing out of the contest, form a special verdict, which should be signed by the foreman. Estate of Keithley, 134 Cal. 9; 66 Pac. 5. An- swers to special interrogatories must be signed either by the jury as a whole, or by their foreman, to make them effective for any purpose. Greenberg v. Hoff, 80 Cal. 81; 22 Pac. 69. Polling after verdict recorded. Under the old practice, the polling of the jury, after the verdict was recorded, was not a matter of right. Blum v. Pate, 20 Cal. 69. Bill of exceptions need not contain ver- dict. The verdict of the jury is a matter of record'; hence, it is unnecessary to in- sert it in, the bill of exceptions. Eeynolds V. Harris, 8 Cal. 617. Bight of party to poll the jury. See note 30 Am. Rep. 497. Validity of verdict rendered after jury have been polled and some jurors have dissented and jury have been sent back for further delibera- tions. See note 6 Ann. Cas. 457. Foreman as spokesman for jury. See note Ann. Cas. 1913B, 385. Necessity that verdict of jury be signed. See note Ann. Cas. 1913D, 182. Receiving verdict on Sunday. See note 39 L. R. A. (N. S.) 844. CODE COMMISSIONERS' NOTE. Under § 171 of the Practice Act of 1851, there was no abso- lute right to poll the jury in a civil case. Blum V. Pate, 20 Cal. 69. informal. When the verdict is an- , in not covering the issue submitted, the advice of the court, or the jury liberty to disregard such measurement. Dougherty v. Haggin, 56 Cal. 522. Where court may remand jury or set ver- dict aside. Where the verdict is not in conformity with the issues submitted, the court may remand the jury, under its advice. Ross v. Austill, 2 Cal. 183. Where the verdict does not cover all the issues submitted, the court should remand tihe jury to render a verdict in proper form; but it is not error to set such verdict aside. Garlick v. Bower, 62 Cal. 65. Omission of words from verdict as affecting validity thereof. See note 16 Ann. Cas. 475. CODE COMMISSIONERS' NOTE. If the ver- dict is informal, the court ought to explain the defects to the jury, and direct them to put it in proper form. People v, Dick. 34 Cal. 666. The court may instruct the jury to amend their ver- dict as to matters of form, not affecting the sub- stance, and in such manner as to be unexception- €67 VERDICTS — GENERAL AND SPECIAL. §624 able in law. Tniehndy v. Jacobsnn. 2 Ciil. 28-1. Or the court may Hiiieiiil the verdict, wluMi it is defective in sonu'thiiig merely formal, and which has no conntclion with the merits of the cause, if the ameiidnient in no respect changes the riKlns of the parties. Perkins v. Wilson, ,3 Cal. 139. But if the court, instead of having the verdict corrected by the jury, atteiii])! to correct it by the judgment, and go beyond the verdict, it is ■error. Ross v. Austin, 2 Cal. 19'J. A general objection to the form of a verdict, without any specilicalion of the particiiiars, will not be con- sidered. Mnhoney v. Van Winkle, 21 Cal. 552. If a verdict returned by a jury is not sufficiently definite and certain to serve as a basis for a judg- ment, and the party against whom it is rendered consents that a certain conHtruclion thereof should be taken as the verdict, this proceeding is quite as irregular, uncertain, and ineffectual as the ver diet itself. Campbell v. Jones, 38 Cal. 509. ARTICLE III. VERDICT. 624. Grneral and special verdicts defined. 625. When a general or special verdict may be rendered. 626. Verdict in actions for recovery of money or on establishing counterclaim. § 627. Verdict in actions for the recovery of specific personal property. § 628. Entry of verdict. § 624. General and special verdicts defined. The verdiot of a jury is either general or special. A ijeneral verdict is that by which they pro- nounce tjenerally upon all or any of the issues, either in favor of the plain- titr or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special 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. tificate, constitute a special verilict. Estate of Keithley, l.'^4 Cal. 9; 6fi Pac. .5. Each question submitted to a jury as a basis for a special verdict should relate to only one fact: the grouping together of several facts is objectionable. Phoenix Water Co. V. Fletcher, 2.S Cal. 481. The jury must decide all questions of fact arising from the evidence, at least where there is a sub- stantial conflict. Estate of Everts, 16.3 Cal. 449; 12.T Pac. 10.58. When a special verdict is ilesired. the practice in this state is, to prepare and submit to the jury the special issues in the form of questions, and this practice is recognized by the legis- lature by the words of § 1314, post, "the issues submitted to them by the court." Estate of Sanderson, 74 Cal.' 199; 15 Pac. 7.") 3. Special verdict sufficient when. A spe- cial verdict must find the facts expressly and s|)ecially, not generally or impliedly; and it must present the facts so distinctly as to refer the court clearly to the ques- tions of law arising ujion them (Breeze v. Doyle, 19 Cal. 101); and it must pass on all the issues, by presenting the conclu- sions of fact bearing on them all. Estate of Sanderson, 74 Cal. 199; 1.1 Pac. 7.53. A special finding in the language of the com- plaint is sufficient. Napa Valley Packing Co. V. San Francisco Relief etc. Funds. !•> Cal. App. 4()1; 118 Pac. 469. Where all the issues in the case are not submitted to the jury, the verdict is an incomplete and imperfect special verdict. Montgom- ery V. Sayre, 91 Cal. 206; 27 Pac. 648. A special finding, not disposing of all the General or special verdict, when may be ren- dered. Post, § 62.'). Misconduct of jury. Post, § 657, subd. 2. Legislation S 624. Enacted March 11. 1872; "based on Practice Act. § 174 (New York Code, § 250), which had the word "shall" instead of ■"must," in both instances. The general verdict. A general verdict is synthetic; a compound of law and fact. Murphy v. Bennett, 68 Cal. 528; 9 Pac. 738. It must control, if the special ver- dict is not absolutely irreconcilable there- with. Petersen v. California Cotton Mills Co., 20 Cal. App. 751; 130 Pac. 169. It must be certain: an uncertain verdict will jQot support the judgment on appeal. Diggs V. Porteus, 5 Cal. Unrep. 753; 33 Pac. 447. It implies a finding in favor of the prevail- ing i)arty, of every fact essential to the -support of his action or defense. Plyer v. Pacific etc. Cement Co., 152 Cal. 125; 92 Pac. 56. A general verdict determines all issues, where there is evidence to support such verdict. Petersen v. California Cotton Mills Co., 20 Cal. App. 751; 130 Pac. 169. Tlie special verdict. A special verdict is analytic; it finds its facts, and submits the law to the court. Murphy v. B(>nnett, 68 Cal. 528; 9 Pac. 738. It is the office of. the trial jury, by their verdict, to find the facts in issue, whether general or special: with the legal effect of such facts they Tiave no concern. Fitzpatrick v. Ilimmel- mann, 48 Cal. 588. Questions of fact pro- pounded to and answered by the jury constitute the ultimate facts to be found, covering the issues growing out of the ■contest; and the embodiment of the ques- tions and answers, with the foreman's cer- §624 VERDICT. 668 issues in the ease, anJ not accompanied by a general verdict, is of no legal effect: no judgment, except by consent of the par- ties, can be entered on it. Montgomery v. Sayre, 3 Cal. Unrep. 365; 25 Pac. 552. Where two defendants answer, and a third makes default, the verdict is properly con- fined to those who answer, and should not include the one as to whom there is no issue. Golden Gate Mill etc. Co. v. Joshua Hendy Machine Works, 82 Cal. 184; 23 Pac. 45. Conclusions of law cannot be considered in determining the sufficiency of a special verdict. Petersen v. Califor- nia Cotton Mills Co., 20 Cal. App. 751; 130 Pac. 169. Submission of special issue. The court may properly refuse to submit a special issue already included iu another issue sub- mitted. Diehl v. Sw^ett-Davenport Lumber Co., li Cal. App. 495; 112 Pac. 561; Irrgang V. Ott, 9 Cal. App. 440; 99 Pac. 528. Court may order new trial when. W'here the court, upon hearing evidence after the jury has passed upon some of the vital issues, makes findings upon all of the is- sues, contrary to the verdict, such action is, in effect, a setting aside and vacating of the verdict, and the court should order a new trial by jury, having no power to de- termine the cause without a jury. Mont- gomery V. Sayre, 91 Cal. 206; 27 Pac. 648. Terms defined. The terms "verdict" and "decision" are appositional: what is predi- cated of one is predicated also of the other. The verdict is the decision of the jury, reported to the court, on matters lawfully submitted to them, and is either general or special; general, when it finds the facts and the law, and special, when it finds the facts only, leaving the law applicable to them to be decided by the court. Simmons v. Hamilton, 56 Cal. 493. Verdict ascertained by averaging aggregate separate markings of all the jurors. See note 34 Am. l;ep. eil5. Chance verdict. See note 2 Am. Dec. 38; 16 Ann. Cas. 910. What special verdict must contain. See note 24 L. R. A. (X. S.) 1. CODE COMMISSIONERS' NOTE. 1. Gen- erally. The verdict musl be confined to the is- sues. Benedict v. Bray, 2 Cal. 256; 56 Am. Dec. 332; Truebody v. Jacobson, 2 Cal. 285. If the court, instead of having the verdict corrected by the jury, attempt to correct it by the judgment, and go beyond the verdict, it is error. Ross v. Austin, 2 Cal. 192. The verdict of a jury is a record, and copies thereof may be sufficiently au- thenticated by the certificate of the clerk. Rey- nolds V. Harris, 8 Cal. 618. A joint verdict against the defendants answering, and a defend- ant in default, is conclusive against all the de- fendants, when a separate verdict has not been dfmanded. Anderson v. Parker, G Cal. 197. A stipulation that a verdict may be entered in favor of the defendant, saving to the plaintiff the rights ■which he would have had in case a jury had ren- dered a verdict for the defendant, is to be re- garded in the same light as a verdict, and is followed by the same legal results. Sunol v. Hep- burn, 1 Ca), 258. The court requested counsel to prepare for the jury blank forms of the ver- dict, and the plaintiff's counsel prepared, and the defendant's counsel assented t'o, two forms, one of which was, "We, the jury, find for the plain- tiff, and that the value of the property was $ "- and the other, "We, the jury, find for the defendant." And it was agreed in open court that the verdict should be in accordance with one of those forms. The stipulation, and. the assent to those forms for the verdict, make it manifest that the respective parties desired, and expected a general verdict for the whole prop- erty in controversy, and negative the idea that either party then claimed that his right to any parcel of the property was of a different char- acter, or rested upon any different basis from, that asserted to all the property. After an ad- verse verdict, rendered under those circumstances, it is too late for the plaintiff to insist on a ver- dict in another form, or to assert a right to a portion of the property upon principles not ap- plicable alike to all the property. Sexey v. Ad- kison, 40 Cal. 418. The court may impose, as a condition of permitting a verdict to stand in other respects, the remission of damages in cases where there was no evidence on the subject of damages, or where the evidence was entirely in- sufficient, or where the court differs from the jury as to the effect of the evidence. But where the verdict for the damages was based entirely upon an admission by the record, it must stand. The admission, if good for anything, is good for the entire amount specified. Patterson v. Ely, 19' Cal. 2 8. 2. General verdict. A general verdict, ren- dered and received without objection, either by the court or the parties, is good, notwithstanding, the failure of the jury to find upon certain special questions submitted to them bv the court. Moss V. Priest, 1 Rob. 632; 19 Abb. Pr. 314. A gen- eral verdict concludes all parties who do not an- swer separately or demand separate verdicts. Winans v. Christy, 4 Cal. 70; 60 Am. Dec. 597; Ellis V. Jeans, 7 Cal. 409. The plaintiff in eject- ment may sue one or more defendants, and they may answer separately, or demand separate ver- dicts; unless they do so, they will be bound by a general verdict. Winans v. Christy, 4 Cal. 70; 60 Am. Dec. 597. In ejectment, the defendants, being in possession, the verdict may be joint against several defendants, without specifying: their respective lots in a whole tract, where they file a joint answer, which contains no averment as to the particular portion of land occupied by each, no proof being offered on the point, no dam- ages being claimed. McGarvey v. Little. 15 Cal. 31. A joint verdict against the defendants an- swering and a defaulting defendant, is binding against all the defendants, when a separate ver- dict has not been demanded, Anderson v. Parker,. 6 Cal. 197; Ellis v. Jeans, 7 Cal. 409. In an action to recover real property, the jury rendered, the following verdict: "We, the jury in this- cause, find a verdict in favor of the plaintiff, against defendants, for the possession of the prem- ises described in the complaint herein, and the sum of $165 damages." This was held, a general verdict, covering all the issues, and that it does not limit the finding to any particular fact or single issue. Hutton v. Reed, 25 Cal. 491; see Leese v, Clark, 28 Cal. 26. Where the jury ren- dered "a verdict in favor of plaintiffs, with one dollar damages," it was held, that the verdict de- cided the question of title in favor of plaintiffs, and that upon it they were entitled to a decree perpetually enjoining defendants from working upon the ground claimed in the comnlaint: that . this equitable relief was a matter of right, the denial of which by the district court was error. McLaughlin v. Kelly, 22 Cal. 211. 3. Special verdict. A special verdict should find "facts," and not the "evidence of facts." The verdict should leave nothing for the court, to determine, save questions of law. Langley v.. Warner, 3 X. Y. 327; Sisson v. Barrett, 2 X. Y. 406; Hill v. Covell, 1 N. Y, 522; Williams v. Willis, 7 Abb. Pr. 90. It should state all the facts. Eisemann v. Swan, 6 Bosw. 669. Not ad- mitted by the pleadings. Barlo v. Himrod, 8- N. Y. 483; 59 Am. Dec. 506; Williams v. Jack- son, 5 Johns. 489. The facts must be found ex- pressly and specially, and not generally or- ^69 GENERAL OR SPECIAL VERDICT RENDERED WHEN. §625 impliedly. Breeie v. Doyle, 19 Cal. 101. Where special issues are submitted, they should include all que.stions of fact raised by the pli'adiiiKs. and necessary to determine the case, amd should bo separately and distinctly slated. I'liu'iiix Water Co. V. Fletcher, 23 Cal. 482. In an action for a quartz-ledge when the defendants deny plain- tiffs' title and ouster, and set uj) title in tliom- ■selves to a part only of the led;;e, a special verdict awardinR defendants that portion of the ledge they claim, without a general verdict, if accepted by plaintiffs, is a finding in favor of •defendants, and entitles tMem to costs. Gonzales V. Leon, 31 Cal. 98. A special verdict settles the facts, and the court, by its judgment, pro- jiounces the conclusions of law upon those facts. If the court errs in this respect, the error may be reviewed without a motion for a new trial; "but the right to correct the verdict does not de- pend upon the judgment, and the steps necessary for that purpose must be taken within the statu- tory time. People v. Hill, 16 Cal. 117. The party in whose favor a judgment is rendered on a spe- cial verdict must move for a new trial, if he is not satisfied with the verdict, as the verdict would otherwise be conclusive as to the facts in the appellate court. Garwood v. Simpson, 8 Cal. 108; Duff V. Fisher, 15 Cal. 380. In ejectment for a tract of land, plaintiff claiming under a deed from one McDowell, the case turned upon the question whether the plaintiff, at the time of his purchase from McDowell, had notice of a prior verbal sale of the land from McDowell to de- fendant. The jury, to whom this question had been specially submitted, returned a verdict: "If possession was notice, he had." This finding was insufficient, because equivocal, neither finding directly the fact of possession, nor the time of it, nor the kind of possession. Woodson v. Mc- Oune, 17 Cal. 298. Where the point on which the case turnea was whether Kappelman & Co., ■who employed plaintiff to do work, acted as contractors in individual capacity, or as agents of defendants, and the jury found a special ver- dict, that "the work and labor done by plaintiff In the construction of the dam was done at the instance and request of Kappelman & Co.. who were the agents of the corporation defendant," it was held that this verdict did not support a judgment for plaintiff, because it did not show, of itself, a legal conclusion of liability, not find- ing whether Kappelman & Co. acted as agents or not. Garfield v. Knight's Ferrv etc. Water Co., 17 Cal. 519. 4. Mixed verdicts. If special matter found follows or is followed by general matter, the for- mer controls. Fraschieris v. Hcnriques, 6 Abb. Pr. (N. S.) 251; see §625, post; McDermott v. Higbv, 23 Cal. 489; Leese v. Clark, 20 Cal. 387. 5. Separate verdicts. Where several defend- ants, in an action for the recovery of real prop- erty, unite in an answer amounting to a general ■denial, a joint verdict is proper, though the an- swer concludes with a prayer for separate ver- § 625. When a general or special verdict may be rendered. 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 case*? 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 instruct 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 thereon. The special verdiet or "finding must be filed with the clerk and entered upon the minutes. Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly. diets. To entitle defendants to separate verdicts, they must set forth with specific description the parcels which they severally occupy or claim, and direct the attention of plaintiff to the I'ourse of defense upon which they will separately insist. Patterson v. Kly, 19 Cal. 28; Hicks v. Coleman, 25 Cal. 14.-); Mo Am. Dec. 103. 6. Effect of verdict. In equity cases the ver- dict is advisory only (Still v. Saunders, 8 Cal. 'jsl), and the court may disregard it. Goode v. Smith, 13 Cal. 84; (Jarner v. Marshall, 9 Cal. 208. A defective allegation in a pleading may be cured by default or verdict, but not so the entire absence of any allegations whatsoi'ver. Hentsch v. Porter, 10 Cal. 555; Garner v. Mar- shall, 9 Cal. 268; People v. Rains, 23 Cal. 128. Where a pleading states a condition precedent, and does not aver performance, the defect must be urged on demurrer; it comes too late after verdict. Happe v. Stout, 2 Cal. 461. An omis- sion to allege delivery, in an action on a bond, cannot be taken advantage of after verdict. Gar- cia V. Satrustegui, 4 Cal. 244; Wilkins v. .Stidger, 22 Cal. 235; 83 Am. Dec. 64. A verified com- plaint, containing only the general averment that "defendants, though often requested, have re- fused," etc., when a special demand was neces- sary, is sutficient in this respect, unless demurred to for want of certainty. If not demurred to, the defective averment is cured by verdict, and the objection cannot be raised in the anpellafe court. Mills V. Barney, 22 Cal. 240; Jones v. Block, 30 Cal. 227. The finding of a jury, upon a fiuestion of fact, how f.nr final and conclusive. Perry v. Cochran, 1 Cal. 180; Duff v. Fisher, 15 Cal. 380. A general verdict does not operate as an estoppel, e.Kcept as to such matters as were necessarily considered and determined by the jury. It is never conclusive upon immaterial or collateral issues. McDonald v. Bear River etc. Mining Co., 15 Cal. 145. The effect of a gen- eral verdict will be limited to such issues as necessarily controlled the action of the jurv. Kidd V. Laird. 15 Cal. 161; 76 Am. Dec. 472.' 7. Affidavits of jurors to impeach a verdict. The affidavit of jurors will not be allowed to con- tradict the verdict. Castro v. Gill, 5 Cal. 40; Amsby v. Dickhouse, 4 Cal. 102; Wilson v. Berryman, 5 Cal. 44; 63 Am. Dec. 78; People V. Baker, 1 Cal. 403. E.xcept where the verdict was the result of "a resort to the determination of chance." .See subd. 2, § 657, post; Boyce v. California Stage Co.. 25 Cal. 475. Biit the tes- timony of the sheriff is competent to disclose what transpires in the jurv-room. Wilson v. Berryman, 5 Cal. 44; 63 Am. Dec. 78. Affi- davits of counsel and others on information respecting the misbehavior of the jury while con- sidering their verdict, are not admissible to im- peach the verdict. Peonle v. Ilartung, 8 Abh. Pr. 132; People v. Wilson, 8 Abb. Pr. 137. The presumptions are in favor of the verdict below, unless error is clearly manifest. Allen v.- Phelps, 4 Cal. 259. Legislation 8 625. 1. Enacted March 11, 1872 ; hased on Practice Act, § 175 (New York Code, §§261, 262). as amended by Stats. 1854. Red- ding ed. p. 62, Kerr ed. p. 88. When enacted :in 1872, (1) the word "shall" was changed to '"must," before "be filed," (2) the words "shall be" were changed to "is," before "inconsistent," (3) the words "shall control" were changed to "controls," and (4) the word "shall" w-as changed to "must," before "t'ive jude-ment," 2. Amended by Stats. 1905, p. 56, (1) add- ing, (a) in first sentence, after "the jury," the §625 VERDICT. 670 words "unless instructed by the court to render a special verdict, may," and (b) placing "may" after "discretion"; (2) changing the second sen- tence to read, "In all cases the court must, upon the request in writing of any of the parties, direct the jury to find a special verdict in writ- ing upon all or any of the issues and in all cases must instruct them upon the request in writing of any of the parties, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and must direct a writ- ten finding thereon." 3. Amended by Stats. 1909. p. 193, changing the section to read as enacted in 1872, except that in second sentence commas were added be- fore and after the words "upon all." Special and general verdict must be con- sistent. A special verdict anil a general verdict must be consistent with each other: the special verdict controls the gen- eral verdict; and where the jury have, by their general verdict, drawn a conclusion not warranted by law, the court should order judgment according to the special verdict. Simmons v. Hamilton, .56 Cal. 493. If a general verdict in favor of a party is not inconsistent with a special verdict in his favor, upon an issue decisive of the case, judgment should be rendered on the general verdict. McDermott v. Higby, 23 Cal. 4S9. A special verdict upon a single point may often determine the whole case: a special verdict, in such ease, would con- trol any general verdict to the contrary; but where the special findings do not have such controlling effect, a special verdict cannot be properly deemed inconsistent with the general verdict. McDermott v. Higby, 23 Cal. 489. Where a special find- ing of facts is inconsistent with the gen- eral verdict, the former controls the latter, and the court must give judgment accord- ingly. Napa Valley Packing Co. v. San Francisco Eelief etc. Funds, 16 Cal. App. 461; 118 Pac. 469. The general verdict must control, unless the special findings are absolutely irreconcilable with it: the court should not strain the language of a finding to make out a case of conflict. Antonian v. Southern Pacific Co., 9 Cal. App. 718; 100 Pac. 877. Where the find- ings are open to a double construction, that construction should be adopted which up- holds the general verdict. Spear v. United Railroads, 16 Cal. App. 637; 117 Pac. 956. There need not be a finding upon each issue in a special verdict, to render it in- consistent with a general verdict. Napa Valley Packing Co. v. San Francisco Ee- lief etc. Funds, 16 Cal. App. 461; 118 Pac. 469. The defendant is entitled to judg- ment, where a special finding controlling the case is in his favor, notwithstanding a general verdict for the plaintiff. Di Vecchio v. Luchsinger, 12 Cal. App. 219; 107 Pac. 315. Special findings, which ex- pressly negative all negligence on the part of any person at the time of an accident, an Am. Dec. 151 ; see subd. 4 of note to S 624, ante. § 626. Verdict in actions for recovery of money or on establishing counterclaim. When a verdiL't is i'ound for the plaintiff in an a<'tion for tlie recovery of money, or for the defendant, when a eounterelaim for the recovery of money is established, exceedint^; the amount of the plaintiff's claim as established, the jury must also find the amount of the recovery. court; and where the action was properly one at law, and the defense was equitable, such findings and conclusions must be re- garded fis surplusage. Diggs v. Porteus, o Cal. Uiiroj). T.".:!; X\ Pac. 417. Verdict for defendant on counterclaim. A finding for the defendant for costs, where he set up a counterclaim for dam- ages, is sufl^cient, as, if the .jury found nothing in favor of the plaintiff, the ver- dict must necessarily be for the defendant, and he would be entitled to costs; the jury could not specify the amount of any re- covery, for there could be no recovery by either party. Electric Improvement Co. v. San Jose etc. Ky. Co., 3 Cal. Unrep. 618; 31 Pac. 45.5. Verdict covering matters not in issue. The jury having nothing to do with mat- ters not in issue, so much of a verdict aa refers to such matters is surplusage. Pierce v. Schaden, 62 Cal. 283. Verdict in action for damages. Where the i)laintiff claims two elements of dam- age, a general verdict for him, in a single sum, cannot be upheld, if substantial error was committed as to one of such elements. Peek V. Steinberg, 163 Cal. 127; 124 Pac. 834. In an action for damages for false arrest and imprisonment, the jury may consider the great humiliation and anguish of the jilaintiff, a woman, as elements in fixing damages. Sebring v. Harris, 20 Cal. App. 56; 128 Pac. 7. Legislation S 626. Enacted March 11, 1873; 1)nscd on Practice Act, § 171) (New York Code, §263), which had the word "shall" instead of ■"must." Certainty of verdict. A verdict for a certain amount, less another amount with interest, is insufficient, the interest being indefinite and uncertain, and not suscep- tible of being ascertained from the plead- ings. Watson V. Damon, 54 Cal. 278; Dougherty v. Haggin, 56 Cal. 522. Wliere the record and the verdict, taken together, show the exact sum which the jury meant to find, the judgment is not void. Hutchin- son V. Superior Court, 61 Cal. 119. Where there is no controversy as to the amount claimed by the plaintiff, and the only issue was as to whether the plaintiff con- tracted with the defendant, a fiuiiing by the jury for the plaintiff is sufficient. Red- mond V. W^eismaiin, 77 Cal. 423; 20 Pac. 544. A general verdict on a promissory note, where there was no issue as to exe- cution, terms, or amount, the only defense being want of consideration, is responsive to the issue raised, and sufficiently certain. Hutchinson v. Superior Court, 61 Cal. 119. Where the complaint averred that the plaintiff was entitled to five hundred inches of water under a four-inch pressure, and the jury found that he was entitled to forty inches, miner's measurement, the verdict is uncertain, as miners' measure- ments vary in different localities. Dough- erty v. Haggin, 56 Cal. 522. An uncertain verdict cannot be made certain by findings of fact and conclusions of law bv the CODE Franklin, COMMISSIONERS' NOTE. Guy v. 5 Cal. 417; Duff v. Hobbs, 19 Cal. 646. § 627. Verdict in actions for the recovery of specific personal property. 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 plain- tiff, or, if being in favor of 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 pre- vailing party has sustained by reason of the taking or detention of such property. Jury must find, etc. See post, § 667. Legislation « 627. 1. Enacted March 11, 1872; based on Practice Act, § 177 (New York Code, §'J61), which had the word "shall" instead of ■"must."' 2. Amended by Code Amdts. 1873-74. p. 311, 1 Fair. — 43 (1) omittins the word "the" after "in favor of." and (2) adding "and, if so instructed, the value of specific portions thereof." Return of property. The plaintiff has the privilege of claiming delivery at any §627 VERDICT. 674 time before the filing of the answer, but it is not compulsory on him to do bo. Well- man V. English, 38 Cal. 583. Judgment cannot be entered on a verdict on a finding in favor of the defendant for half of certain personal property, for the recovery of vrhich the plaintiff has sued: the jury should be directed by the court, on its own motion, to retire and find as to the other half (Muller v. Jewell, 66 Cal. 216; 5 Pac. 84) ; but the plaintiff is precluded from any further litigation with the de- fendant, where only a portion of the prop- erty sued for is granted him, and the verdict is silent as to the remainder: it must be held that the plaintiff was de- nied any further relief than that granted. Eyan v. Fitzgerald, 87 Cal. 345; 25 Pac. 546. Where the recovery of the property is the primary object of the suit, as where damages will not compensate the plaintiff, he should frame his bill in equity, specify- ing the reasons therefor, and a decree can then be so framed as to compel a specific delivery. Nickerson v. Chatterton, 7 Cal. 568. Value of property, and damages. A special verdict as to value is a statutory requisite. Pico v. Pico, 56 Cal. 453. The value of any specific portion of property is to be found by the jury, only if so in- structed; and error can arise in a case, only where such instruction is pertinent and proper, and the instruction was asked and refused. Whetmore v. Rupe, 65 Cal. 237; 3 Pac. 851; Brenot v. Robinson, 108 Cal. 143; 41 Pac. 37; Kellogg v. Burr, 126 Cal. 38; 58 Pac. 306. Where delivery of the property is made to the plaintiff be- fore the judgment, a judgment in his favor for its possession is sufiicient. Claudius v. Aguirre, 89 Cal. 501; 26 Pac. 1077. Where the defendant was entitled to the prop- erty at the commencement of the action, but such right ceased and vested in the plaintiff before the trial, the judgment should leave the property in the plaintiff's possession, and award costs to the defend- ant. O'Connor v. Blake, 29 Cal. 312; Flinn v. Ferry, 127 Cal. 648; 60 Pac. 434. Dam- ages for the detention of the property may be recovered by the plaintiff, but not money expended by him in its pursuit, as in actions for conversion. Kelly v. McKibben, 54 Cal. 192, Where the court instructed the jury to render a verdict for the plaintiff for the property, and to find the value of the property and the damages, and the jury found and re- turned a verdict for the plaintiff for the value of the property and for damages, but did not find for the plaintiff for the property, the verdict, and the judgment thereon, are erroneous, as the plaintiff could not elect to deliver the property. Noreross v. Nunan, 61 Cal. 640. Alternative judgment for return and value. The plaintiff may require the jury to find the value of the property, and he may insist, as a right, upon the alternative judgment. Clary v. Rolland, 24 Cal. 147; Mills V. Gleason, 21 Cal. 274. Where the jury find for the defendant, and fix the value of the property, a judgment for the return of the property, or for the value thereof in case delivery cannot be had, is- justified. Etchepare v. Aguirre, 91 Cal. 288; 25 Am. St. Rep. 180; 27 Pac. 668. Where the jury find the right of possession to be in the plaintiff, the right to its de- livery if it can be had, and if not, then to its value as found by the jury in the alternative, is a conclusion of law which the judgment must contain, but not the verdict. Ryan v. Fitzgerald, 87 Cal. 345; 25 Pac. 546. It is not necessary for the court to find the character or value of the property which can be returned, where such fact appears at the trial, nor is the court bound to enter judgment in the al- ternative. Burke v. Koch, 75 Cal. 356; 17 Pac. 28; Brown v. Johnson, 45 Cal. 76; Whetmore v. Rupe, 65 Cal. 237; 3 Pac. 851. The value of the property may be found by the jury, if their verdict is in favor of the plaintiff, only if the property has not been delivered to the plaintiff, and^ conversely, if the property has been deliv- ered to the plaintiff, they are not required to find the value; and in the absence of such finding, there is no verdict upon which to base an alternative judgment. Claudius V. Aguirre, 89 Cal. 501; 26 Pac. 1077; Caruthers v. Hensley, 90 Cal. 559; 27 Pac. 411; Seligman v. Armando, 94 Cal. 314; 29 Pac. 710; Erreca v. Meyer, 142 Cal. 308; 75 Pac. 826. Where the property has been delivered to the plain- tiff, a defendant who recovers a judgment is entitled to a judgment for a return of all the property; and if it cannot be re- turned, then to a judgment for the value of the whole. Whetmore v. Rupe, 65 Cal. 237; 3 Pac. 851. The defendant must, in his answer, assert his formal claim for the return as a prerequisite to a judgment for the return of the property or its value. Pico V. Pico, 56 Cal. 453; Banning v. Mar- leau, 101 Cal. 238; 35 Pac. 772. There is no difference, in principle, between a judg- ment for the value of the property sued for without the alternative for its deliv- ery, and a judgment for the delivery of the property without the alternative for its value: if the former is free from error^ the latter must be equally so. Claudius v. Aguirre, 89 Cal. 501; 26 Pac. 1077; Burke v. Koch, 75 Cal. 356; 17 Pac. 228. Judgment on nonsuit. This section does not apply to cases of nonsuit. Ginaca v. Atwood, 8 Cal. 446; Clary v. Rolland, 24 Cal. 147. To enable the defendant to ob- tain the value of property on a judgment of dismissal against the plaintiff for fail- ure to appear, the answer must contain, some allegation or prayer relative to the G75 CONSTR UCTION — ENTRY — CORRECTION — J UDG M ENT. §628 change of possession from the defendant to the jdaintiff: the judgment of return is in the nature of a cross-judgment, and must be based upon proper averments. Gould V. Scannell, 13 Cal. 430; Tico v. Pico, 56 Cal. 453; Banning v. Marleau, 101 Cal. 238; 35 Pac. 772. Upon a dismissal by the plaintiff, the questions which should have been determined are left open to dii- termiuiition in an action on the replevin bond. Mills V. Gloason. 21 Cal. 274. Construction of verdict by court. Where the form of the verdict is not satisfactory to a party, he should ask, at the time, to have it made formal and certain; other- wise it is the duty of the court so to con- strue it as to give it the effect intended by the jury, if it is susceptible of a con- struction which may have a lawful and relevant effect. Johnson v. Visher, 96 Cal. 310; 31 Pac. 100. Appeal. A party will not be heard to object to a verdict for the first time on appeal from the judgment, if it is suscep- tible of a construction which may have a lawful and relevant effect. Johnson v. Visher. 96 Cal. 310; 31 Pa.-. 106. Measure of damages recoverable in replevin. Sec tiu'e '22 .\m. Kii». '_'>■'"). Right of defendant In replevin to compensation for depreciation in value of property returned. Sep note 2 Aim. ('as. 901. Punitive damages in replevin or claim and de- livery. See note A .\t\u. Cas. 71. Effect on verdict in replevin of failure to find unlawful taking or detention. See note 20 Ann. Cas. i:!0. Necessity that verdict In replevin give separate valuation of several articles involved. Sec note Ann. Cas. 1912D, 819. Requisites of special verdict in action of re- plevin. See note 24 I>. R. A. (X. S.) 18. CODE COMIIISSIONERS' NOTE. Xirkorson v. Chatterton, 7 Cal. 5G8 ; Waldraan v. Broder, 10 Cal. 379; Coghill v. Boring, 15 Cal. 218; Mills V. Gleason, 21 Cal. 274. § 628. Entry of verdict. 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 special verdict is found, either the judgment rendered thereon, or if the Case be reserved for argument or further consideration, the order thus reserving it. in the complaint; the verdict cannot go beyond the issues, and the surplus matter may be disregarded in entering judgment. Marquard v. Wheeler, 52 Cal. 445. Judgment rendered •when. The judg- ment is not always rendered immediately after the rendition of the verdict, nor even after the filing of the finding of facts by the judge or referee. Gray v. Palmer, 28 Cal. 416. Where there is no question as to the proper judgment to be entered on the verdict, the judgment should be en- tered at once, without waiting for a motion for a new trial, or any proceedings to set aside the verdict (Hutchinson v. Bours, 13 Cal. 50); but the rendition of judgment on a special verdict is often reserved for argument or further consideration, and it frequently happens that judgment cannot be rendered for several months after the rendition of the verdict or the filing of the findings of facts. Gray v. Palmer, 28 Cal. 416. Legislation S 628. Enacted March 11, 1873 5 ba.sed on PraL-ticc Act, § 178. Construction of section. The matters mentioned in this section form a con- nection between the pleadings and the judgment, being a digression in the pro- gress of the trial from the general course of procedure, and are properly evidenced by a permanent memorandum thereof for the guidance of the court, but their value ends on entry of judgment, and they can- not be used to im]ieach the record. Von Schmidt V. Widber, 99 Cal. 511; 34 Pac. 109. Entry of verdict presumed correct. The verdict is part of the judgment roll; and where the clerk properly certifies the tran- script on a]ipeal as being an authentie copy of the judgment roll, and the verdict appears therein, it will be presumed that it was properly recorded and entered by the clerk in the minutes of the court. Gold- man V. Eogers, 85 Cal. 574; 24 Pac. 782. /.Itcrr.tion or correction of vordict. The court acts upon the verdict as it is, and not as it should be (People v. Hill, 16 Cal. 113); and it cannot enter a verdict contrarv to the will of the jury. Mont- gomery"' v. Sayre, 91 Cal. 206; 27' Pac. 648. The right to correct an unsatisfactory verdict does not depend upon the judg- ment, but all questions of this character should be settled before the final action of the court. People v. Hill, 16 Cal. 113. Verdict and judgment must follow issues. To render a judgment payable in gold coin is error, even if the verdict specifies gold coin, where the agreement does not call for gold coin, and it is not demanded CODE COMMISSIONERS' NOTE. The verdict should be recorded as reiul-red. Moody v. Mc- Donald, 4 Cal. 297. Under the code, it must be rendered in writing. Ante, § 618. If an in- formal verdict is recorded with consent of the prevailing party, and judgment in form is after- wards entered thereon, the informality will be disregarded. Tre.idwell v. Wells, 4 Cal. 263. Be- fore a verdict is recorded, it ought to be declared by the foreman, or, if sealed, read by the clerk, so that the parties may be distinctly informed of its purport. It is irregular to record the verdict before it is thus announced, but the irregularity must be objected to at the time, or it will not be noticed on appeal. Assent to a recorded ver- dict, expressed by the foreman, is conclusive upon all the jury, unless a disagreement is ex- pressed at the time. Blum v. Pate, 20 Cal. 69; but see §§ 618, 619, ante. §631 TRIAL BY COURT. 676 CHAPTER V. TRIAL BY COURT. § 631. When and how trial by jury may be waived. § 632. Upon trial by court, decision to be in writing and filed within thirty days. § 633. Facts found and conclusions of law must be separately stated. Judgment on. § 634. Waiving findings of fact. §635. Findings, how prepared. [Repealed.] § 636. Proceedings after determination of issue of law. § 631. When and how trial by jury may be waived. Trial by jury may be Avaived by the several 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 filed with the clerk. 3. By oral consent, in open court, entered in the minutes. 4. By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice or stipulation, or within five days after notice of setting if it be set without notice or stipulation. 5. By failing, at the beginning of each day's session, to deposit wath the clerk the jury fees and, if there be any, the mileage for such day. to appear, although the judge, on receipt of a telegram from the defendant the day before the trial, had ordered a jury (Mc- Guire v. Drew, 83 Cal. 225; 23 Pac. 312); but the failure of the defendant to appear at the trial, when the case was improperly on the equity calendar, and he hsd no notice thereof, is not a waiver. Sweeney V. Stanford, 60 Cal. 362. Stipulation as waiver. A stipulation should not be regarded as a contract made upon a valuable consideration, which should not be set aside except for fraud or mistake; and relief should be had there- from, where neither party would be in- jured, nor the orderly conduct of the busi- ness of the court disarranged. Ferrea v. Chabot, 121 Cal. 333; 53 Pac. 689, 1092. A stipulation of attorneys to set a case for trial on a day certain, before a department then known to be engaged in the trial of causes without a jury, is not a waiver of the right to a trial hy jury: such right cannot be waived by implication. Piatt V. Havens, 119 Cal. 244; 51 Pac. 342. Oral consent as waiver. An oral agree- ment, made in open court, to waive a trial by jury upon a counter-agreement to trans- fer the cause to another department, so as to secure delay, cannot be avoided be- cause not entered in the minutes. Hawes V. Clark, 84 Cal. 272; 24 Pac. 116. Trial by court, without objection, as waiver. There is a waiver of trial by jury, where counsel for the defendant appears, and the cause is tried by the court without objection (Boston Tunnel Co. v. McKen- zie, 67 Cal. 485; 8 Pac. 22) ; and also where the parties go to trial without demanding Waiver of jury trial. See Const., art. I, § 7. Waiverof jury, injustice's court. Seepost, § 883. Legislation § 631. 1. Enacted March 11, 1873; re-enactment of Practice Act, § 179. 2. Amended by Code Amdts. 1873-7-i, p. 311, (1) in the first paragraph, (a) adding "or for the recovery of specific real or personal property, with or without damages," and (b) omitting the word "the" before "manner"; (2) omitting the final paragraph, which read: "The court may pre- scribe by rule what shall be deemed a waiver in other eases." 3. Amendment by Stats. 1901, p. 146: un- constitutional. See note ante, § 5. 4. Amended by Stats. 1915, p. 649, (1) in subd. 2, striking out the phrase "in person or by attorney," after "written consent"; (2) add- ing subds. 4 and 5. Coastruction of section. A jury may be waived only in one of the modes prescribed by this section. People v. Metropolitan Surety Co., 164 Cal. 174; 128 Pac. 324. Constitutional provision. The provision of the constitution securing the right to a trial by jury refers generally to those cases in which such right existed at com- mon law at the time of the adoption of the constitution. Woods v. Varnum, 85 Cal. 639; 24 Pac. 843; and see Grim v. Norris, 19 Cal. 140; 79 Am. Dec. 206. Waiver by failure to appear. The fail- ure of either party to appear at the trial operates as a consent, on his part, that the issue shall be tried by the court with- out a jury; but failure to appear does not authorize the trial to be had by a jury of less than twelve persons. Gillespie v. Benson, 18 Cal. 409. The absence of the defendant is a waiver of the right to a trial by jury; and the mere filing of an answer does not constitute an appearance (Zane v. Crowe, 4 Cal. 112); and there ia also a waiver, where the defendant fails 677 WAIVER — DEMAND FOR JURY — RULES OF COURT — EQUITY. §631 a jury (Pfister v. Dascov, 65 Cal. 403; 4 Pac. 393; F^errea v. Chabot, 121 Cal. 233; 53 Pac. 689); and also where the case comes on regularly for trial before the court without a jury, and the trial actually begins (Polak v. Gurnee, GG Cal. 2G(); 5 Pac. 229); and also where the verdict of the jury is treated by counsel and the court as of no effect and both parties pro- ceed to try the case, introduce further evidence, and submit the case for decision and judgment. Montgomery v. Sayre, 3 Cal. I'jnrep. 3Go; 25 Pac. 552. Presumption of waiver. The presump- tion is, that the defendant waived the right to trial by jury, where the record on appeal is silent on the subject. Mont- gomery V. Sayre, 91 Cal. 206; 27 Pac. G48; Leadbetter v.' Lake, 118 Cal. 515; 50 Pac. 686. The right to a jury trial should not be held waived by implication. People v. Metroj.olitau Sure\v Co., 16-1 Cal. 174; 128 Pac. .-524. Demand for jury. It is not necessary for a party entitled to a trial by jury to make any demand therefor; and where the defendant files a written demand for a jury, this must be held to be a continued refusal to waive the right. Swasev v. Adair, 88 Cal. 179; 25 Pac. 1119. Where a demand for a jury must be considered as a continuous refusal to waive the right, it is not necessary to repeat the demand. Wendling Lumber Co. v. Glenwood Lum- ber Co., 19 Cal. App. 1; 124 Pac. 734. Failure of the defendant to demand, on law-day, a trial by jury, as required by the rules of the court, is not a waiver of the right (Biggs v. Lloyd, 70 Cal. 447; 11 Pac. 831); nor is there a waiver, where the defendant, by reason of the postpone- ment of the trial, at his request, from morning until the afternoon, prior to its commencement, and he is entitled to a jury trial if he demands it before the trial actu- ally commences, unless he has waived it in one of the wavs prescribed by law. Far- well V. Murray, 104 Cal. 464; 38 Pac. 199. A telegraphic demand for a jury trial, sent to the judge the day before the trial, is not sufficient, even where the judge, upon the receipt of the telegram, orders a jury, if the party fails to appear in person or by counsel at the trial. McGuire v. Drew, 83 Cal. 225; 23 Pac. 312. Where the de- fendant demands a trial by jury, and the plaintiff objects, it is within the discre- tion of the court to require the defendant, as a condition for making the order, to deposit one day's per diem and the mile- age of the jury. Hudson v. Hudson, 129 Cal. 141; 61 Pac. 773; and see Naphtaly v. Rovegno, 130 Cal. 639; 63 Pac. 66. Rules of court. The legislature alone has the power of declaring what shall con- stitute a waiver of trial by jury: a rule of court cannot declare what shall be con- sidered such a waiver (People v. Metro- politan Surety Co., 164 Cal. 174; 12S Pac. 324; Biggs v. Lloyd, 70 Cal. 447; 11 Pac. 831); and the failure of the defendant to demand a trial by jury, at the time the case is set for trial, as called for by the rules of the court, is not a waiver of the right. Biggs v. Lloy