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10. Miscellaneous Proceedings. ARTICLE

ARTICLE Proceedings against joint debtors

1114. How enforced. 1103. How those not served may be bound by judg- Arbitration ment.

1115. What may be submitted to arbitration. 1104. Summons to show cause.

1116. How submission to be made. 1105. Same.

1117. Same; revocation of; award, how enforced. 1106. Answer and defense.

1118. Power of arbitrators. 1107. Where defendant denies liability.

1119. Proceedings of arbitrators. 1108. Iseues formed, how tried.

1120. Award, how made ; effect of. Confession of judgment

1121. In what cases vacated. 1109. Judgment by confession, without action.

1122. In what cases modified. 1110. Judgment, how entered.

1123. Appeal. 1111. Same.

1124. Submission revoked, amount recoverable. Submitting controversy

Offer to compromise1112. How controversy may be submitted.

1125. Not to prejudice. 1113. Judgment, bow entered.

11. Witnesses, and manner of obtaining Evidence. Witness

case; copartners may be witness on their own 1126. Who may be witness; religious belief, not to behalf in a controversy between them. disqualify; interest, when to disqualify:

Affidavit 1127. Test of.

1157. How taken. 1128. Who shall not be witness.

1158. In another state. 1129. Husband and wife cannot be witness against 1159. In foreign country. each other.

1160. How certified when taken out of the state. 113). Attorney cannot disclose communications of Deposition taken in this stateclient.

1161. Deposition, in what cases may be taken. 1131. Cleryman cannot disclose confession.

1162. How taken. 1132. Physiciae not to disclose information acquired 1163. Manner of examination; manner of transmisfrom patient.

sion. 1153. Pullic officer cannot disclose confidential com- 1164. May be used by either party. munications,

Deposition taken out of this state1134. Judge or juror may be witness,

1165. When tostimony may be taken out of the state. 11:35. Interpreter of foreign language.

1166. How taken. Attendance of witness—

1167. Settling interrogatories. 1136. Subpena duces tecum; witness cannot be re- 1168. Commission, what to contain.

quired to attend out of county of residence. 1169. Postponement of trial for non-return of. 1137. Enbpena, how issued.

Perpetuation of testimony1138. How served.

1170. Testimony, how perpetuated. 119. Same.

1171. Manner of proceeding. 1140. Person present need not be subpenaed.

1172. Same; examination and deposition. 1111. Duty of witness.

1173. Affidavit, effect of. 1142. What questions witness must answer.

1174. Deposition, when to be used as evidence. 1143. Penalty for disobedience to subpena.

Oaths and afirmations1141. Same.

1175. Who authorized to administer oaths. 1145. Witness failing to attend may be arrested. 1176. Oath, how administered. 1146. Witness confined in jail, testimony, how taken. 1177. Affirmation, form of. 1147. Sarne.

Inspection of documents, etc.1148, Same.

1178. Court may order party to allow inspection, etc. 1149. Witness exonerated from arrest.

of papers, etc. in his possession. 1150. Liability of officer making the arrest.

1179. Evidence of the contents of a writing. Examination of party

1180. Alterations in writing to be accounted for. 1151. Discovery onder oath, how had.

1181. Judicial record, how proved. 1152. Party may be examined at instance of adverse 1182. Same. party.

1183. Judicial record of foreign country, how proved. 1153. Examination may be rebutted; party refusing to 1184. Copy of, when admissible. testify, judgment to go against him.

1185. Printed volumes of statutes, to be admitted as 1154. Examination of party, on own behalf.

evidence. 1155. Examination of party for whose benefit suit is 1186. Seal of court, etc. how impressed. prosecuted.

1187. Copy of document, etc. when certified by custo1156. Party may testify on his own behalf in certain dian of same, evidence.

12. Certiorari and Mandamus. Certiorari

1189. Application for, how made. 1188. Denomination of writ; by what courts granted ; 1190. To whom to be directed. in what cases granted.

1191. Writ, what to contain.


ARTICLE 1192. Same.

1202. Answer to writ. 1193. How served.

1203. When court may order question to be tried by 1194. Review upon, extent of.

jury. 1195. Return of; judgment.

1204. Objection to sufficiency of answer. 1196. Copy of, to be transmitted.

1205. New trial. 1197. Judgment roll; appeal.

1206. Duty of clerk to transmit verdict; argument of Mandamus

application. 1198. Denomination of writ; what courts may issue; 1207. Same. for what causes.

1208. Judgment; execution. 1199. Same.

1209. Writ, how served. 1200. Writ either alternative or peremptory; alterna- 1210. Penalty for disobeying peremptory mandamus. tive, defined; peremptory, defined.

1211. Writs of certiorari and mandamus issuable in 1201. When alternative and when peremptory, to be

issued; notice of application; not to issue by

13. Contempts and their Punishments. 1212. Contempt, what deemed.

1219. Return of warrant; trial. 1213. When punishable summarily.

1220. Penalty, if found guilty. 1214. Attachment for, when issuable ; commitment 1221. Penalty, when contempt consists in omission el for, when issuable.

an act in the power of defendant to perform. 1215. Bail.

1222. Indictment. 1216. Duty of sheriff.

1223. Proceeding when defendant does not appear. 1217. Discharge from arrest.

1224. Duty of officer having defendant in custody, 1218. How effected.

1225. Judgment to be final, etc; punishment.

14. Costs. 1226. Compensation of attorneys, etc; prevailing party | 1235. In action where administrator, executor, etc. is allowed costs.

party. 1227. Costs, when allowed of course, to plaintiff. 1236. On review. 1228. When several actions on one cause of action. 1237. Tax-fee on action, etc; how applied; settlement 1229. When allowed of course, to defendant.

of, by clerk. 1230. When may be allowed or not; when not allowed. 1238. Memorandum of costs to be delivered to clerk. 1231. When plaintiff fails to recover against all defend- 1239. Costs to be included in judgment. ants.

1240. Security for costs. 1232. Of appeal.

1241. Same. 1233. Fees of referees; costs where trial is postponed. 1242. Same. 1234. When defendant has tendered amount due. 1243. Costs where state is party.

15. Motions, Orders, Notices, Service of Papers and Miscellaneous Provisions. 1244. Order defined; motion defined.

1253. Successive actions on the same contract; when 1245. Where to be made; notice of.

.actions may be consolidated. 1246. May be transferred.

1254. Action to settle adverse claims; action by surety 1247. Service of papers, how made.

to compel satisfaction of debt. 1248. Same.

1255. Register of actions. 1249. When by mail.

1256. Referees, majority may act. 1250. Same.

1257. Time, how computed. 1251. When defendant deemed to have appeared. 1258. Paper without the title of the action, when 1252. Service of papers, after appearance; when de

valid. fendant resides out of the state; what papers 1259. Limitation of action arising out of the state. to be served on the attorney.

16. Proceedings in Justice's Court. Parties, time and place of commencing action- 1271. When order for arrest may be indorsed. 1260. Parties to action.

1272. Same. 1261. May appear in person or by attorney.

1273. When defendant may be taken before another 1262. Not to be held to answer out of township of resi- justice. dence, except in certain cases.

1274. Duty of officer making arrest. 1263. Judgment by confession, where entered up. 1275. Same. 1264. Jurisdiction by consent of parties.

1276. Defendant under arrest may demand immediate Summons, arrest, attachment, etc

trial, or be bailed. 1265. Action, how commenced.

1277. How defendant may obtain an adjournment. 1266. Guardian, how appointed.

1278. Attachment, when may be issued. 1267. Summons, form of.

1279. Prerequisites to issuance. 1268. Time of service and appearance.

1280. Writ of, form. 1269. Hlow served.

1281. Same. 1270. Service by publication.

1282. Previous provisions made applicable.


ARTICLE 1283. Plaintiff may claim delivery of property. 1322. Proceeding when amount found due exceeds juris1284. Delivery, how claimed.

diction of the justice. 1935. Order for

1323. Effect of defendant offering to allow judgment 1286. Duty of officer in the premises.

for a specified sum. 137. Excepting to sureties.

1324. Judgment where defendant is subject to arrest, 1288. How defendant may reclaim property.

etc. 1289. Justification of sureties of defendant.

1325, Costs to be included in judgment. 1290. When property is concealed in a building, etc. 1326. How execution may issue to sheriffs on judgment how officer must proceed.

of justice; process on judgment, how issued; 1291. Disposition of property by officer.

lien of judgment. 1292. Proceeding in case property is claimed by third 1327. Execution. party.

1328. Form of. 1203. Return of order.

1329. How executed; examination of debtor on oath ; 1294. Qualification of sureties.

of debtor. 1295. Justification of sureties, how conducted. 1330. Provisions applicable to justices' courts. 1236. Proceeding of justice when he finds the sureties 1331. Docket, how to be kept. sufficient.

1332. Same; entries to be evidence. Pleadings and trial

1333. Index to. 1297. Pleadings, defined.

1334. To be deposited with successor; during vacancy 1208. When to be in writing and verified.

to be deposited with county clerk. 1293. Oral, to be entered on docket; written, to be 1335. Any justice may issue executions on; in case of filed; do particular form of.

creation of new county or change of bounda1300. Complaint, what to state.

ries, who considered successor. 131. Answer, what to contain.

1336. Who deemed successor. 1312. Certain statement in, equivalent to denial. 1337. Same. 1313. When tange of action arises upon an instrument 1338. Papers, how to be filled up. for payment of money only.

1339. In case of sickness of justice. 1504. Instrument, the ground of action admitted to be 1340. Special deputation to serve papers. genaine, unless denied under oath.

1341. Authority of such deputation. 1308. Objection to pleading.

1342. Constable after expiration of term, to complete 130. Tariance between proof and allegation, when the execution of process already begun. immaterial.

1343. Contempt, what acts constitutu. 1307. Amendment of pleadings.

1344. When and how punished summarily; not in view 1308. Title to real property not to be raised; proceed- of court, proceedings; punishment of.

inge when title to real property comes in ques- 1345. Conviction for, how entered.

1346. Subpenas.
1309. When action to be transferred; how transferred; 1347. Commissioners to take depositions.
adjournment of trial,

1348. Mining claims in action, respecting, what evi1310. Same.

dence admissible. 1311. Same.

1349. New trial, for what causes granted. 1312 Same.

1350. Application for, how made. 1313. Plaintiff failing to appear, action to be dismissed; 1351. Appeal, how taken.

party failing to appear, caso may proceed. 1352. Statement of party appealing. 1314. Trial by jury, when to be demanded; proceedings 1353. When action tried anew. when jury trial demanded.

1354. Certified copy of docket to be transmitted. 1315. Same.

1355. How made effectual; undertaking and justifica1316. Same.

tion of sureties. 1317. Challenging jurors.

1356. Stay of proceedings. Judgment and execution

1357. Costs, allowed to party prevailing. 1318. Judgment of dismissal without prejudice, in what 1358. Duty of justice in paying over money, etc; pencases entered.

alty for failure. 1319, Judgment by default.

1359. May require deposit, etc. as security for costs. 1330. Proceeding when jury trial pot demanded, 1360. Certain provisions applicable to justices' courts. 129. Jadgment, how and when entered.

17. Proceedings in Recorders' and Mayors' Courts. 191. Action, how commenced.

1365. Appeal. 13.2. Summons.

1366. Proceedings, how conducted. 133. Pleadings.

1367. Provisions, to what courts applicable. 144. Trial.

18, Miscellaneous Prorisions. 1988. Rules of court, how made.

1371. Service of papers in certain counties. 1368. County clerk, to be clerk of certain courts. 1372. Terms explained. 1370. Action against sheriff, how judgment may be 1373. Sureties, how to justify.

given against sureties on bond of indemnity. 1374. Mining claims, action respecting.


ARTICLE 1375. Same; action by tenants in common, etc. 1378. Transfer of causes. 1376. Certified copies of certain instruments to be re- 1379. Removing causes to United States courts.

ceived in evidence; patent, how to be estab- 1380. Suits on bonds, etc. in favor of the state.

lished as genuine; duty of county recorder. 1381. Iniprisonment on civil process, how discharged. 1377. Suits against counties.

1382. Limitation of hours of labor.


Act of April 13, 1850, adopting the Common Law. ARTICLE 735. The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution of the United States, or the constitution or laws of the state of California, shall be the rule of decision in all the courts of this state. II.--FORM OF ACTION, PARTIES, PLEADINGS, EVIDENCE, TRIAL, JUDGMENT, EXE

CUTION, ETC. Act of April 29, 1851, to regulate Proceedings in Civil Cases.—{Took effect July 1, 1851. R. A. St. 1850, 428, 412,

189, 179, 203, 423.

1. Form of Action and Parties. Art. 736, Sec. 1. There shall be in this state but one form of civil action, for the enforcement or protection of private rights, and the redress or prevention of private wrongs. (1)

Art. 737, Sec. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

Art. 738, Sec. 3. When a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

Art. 739, Sec. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act; but in suits brought by the assignee of an account, unliquidated demand, or thing in action not arising out of contract, assigned subsequently to the first day of July, one thousand eight hundred and fifty-tour, the assignor shall not be a witness on behalf of the plaintiff.(2)—[Am. May 7, 1855; R. S. St. 1854, 59 ; St. 1851, 51; St. 1850, 428; C. L. 520.

Art. 740, Sec. 5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense, existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration before due. (3)

Art. 741, Sec. 6. An executor or administrator, trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person 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 another.—[Am. May 15, 1854; R. S. St. 1851, 52; St. 1850, 428; C. L. 520.

Art. 742, Sec. 7. When a married woman is a party, her husband shall be joined with her; except that:

Art. 743. 1. When the action concerns her separate property, she may sue alone.

Art. 744. 2. When the action is between herself and her husband, she may sue or be sued alone. (4) Art. 745, Sec. 8. If a husband and wife is sued together, the wife may

defend for her own right. (5)

(1) Dewitt v. Hays, 2 Cal. 463.
(2) Gritlin v. Alsop, 4 Cal. 406; Ryan v. Maddux, July T. 1856; Allen v. S. N. Co. Oct, T. 1850; Oliver r.
Walsh, id,

(3) Morgan v. Lowe, 5 Cal. 325; Rhodes v. Hinckley, July T. 1856.
(4) Snyder v. Webb, 3 Cal. 83; Kashaw v. Kashaw, 3 Cal. 312.
(5) Deuprez v. Deuprez, 5 Cal. 387.

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Art. 746, Sec. 9. When an infant is a party he shall appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.

Akt. 747, Sec. 10. The guardian shall be appointed as follows : 1. When the infant is plaintiff

, upon the application of the infant, if he be of the age of fourleen 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 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 infant.

Art. 748, Sec. 11. 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 child; and a guardian for the injury or death of his ward.

Art. 749, Sec. 12. All persons having an interest in the subject of the action, and obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act.

ART. 750, Sec. 13. 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. (1)

Art. 751, Sec. 14. Of the parties to the action, those who are united in interest shall 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.

Art. 752, Sec. 15. Persons severally liable upon the same obligation 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 aetion, at the option of the plaintiff.

ART. 753, Sec. 16. An action shall not abate by the death, or other 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 other disability of a party, the court, on motion, may allow the action to be continued by or against his representative or suceessor 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.

Art. 754, Sec. 17. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights: but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. (2)

2. Place of Trial of Civil Actions. Art. 755, Sec. 18. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this act: 1. For the recovery of real property, or of an estate, or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property. 2. For the partition of real property. 3. For the foreclosure of a mortgage of real property. (3)

ART. 756, Sec. 19. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court

(1) Winans r. Christy, 4 Cal. 70; Beck v. San Francisco, id. 375. (2) Wilson t. Lossen, 5 Cal. 114.

(3) Vallejo v. Randall, 5 Cal. 461.

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