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trial to be changed, it shall be transferred for trial to a court the parties may agree upon by stipulation in writing, or made in open court and entered in the minutes; or, if they do not so agree, then to the nearest court where the like objection or cause for making the order does not exist, as follows: 1. If in the district court, to another district court. 2. If in the superior court of the city of San Francisco, to the district court. 3. If in a county court, to a district court, or some other county court. 4. If in the probate court, to a district court, or some other probate court. 5. If in a justice's court, to another justice's court in
, the same county.
Sec. 2. When an order is made transferring an action or proceeding for trial, the clerk of the court, or justice of the peace, shall transmit the pleadings and papers therein to the clerk or justice of the court to which it has been transferred. İf the transfer is make on the ground that a judge or justice is disqualified from acting, the costs and fees thereof, and of re-entering and filing the pleading ani papers anew, are to abide the event of the action or proceeding; in other cases they are to be paid by the party at whose instance the order is made.
Sec. 3. The court to which an action or proceeding is transferred shall have and exercise over the same the like jurisdiction as if it had been originally commenced therein, and may by order or execution enforce the judgment.
Sec. 4. In an action or proceeding transferred from a probate court, or brought to recover the possession of lands or tenements, (excepting it be in a justice's court) after final judgment therein, the clerk of the court in which it is heard shall certify under his seal of office, and transmit to the court from whence it is transferred, a full transcript of the proceedings and judgment. The clerk receiving such transcript shall docket and record the judgment in the records of his court, briefly designating it as a judgment transferred from court (naming the proper court.)
Sec. 5. On transferring causes the following, and no other fees and costs, shall be allowed to the clerks of the court: For transmitting the pleadings and papers of a cause, the sum of two dollars; for re-entering and filing the same pleadings and papers anew, three dollars; for certifying and remitting a transcript and judgment, when required to be done under this act, five dollars ; for docketing and recording a transcript and judgment, when required to be done under this act, five dollars. The last two items may be taxed in favor of the successful party, and made a part of the judgment against the other party, or otherwise ordered paid, as the court hearing the action or proceeding may, by its order of judgment, direct.
Sec. 6. If an action or proceeding is transferred to a justice's court, the justice receiving it shall, three days before he proceeds to the trial thereof, unless the parties stipulate, in writing, to waive such notice, cause therein a notice, in writing, to be served on the parties, which notice shall inform them of the time and place of trial ; in other cases the action or proceeding shall proceed in the inander prorided for by law in such actions or proceedings. Act of April 9, 1855, for certifying and removing certain cases from the Courts of this State to the United States
Circuit Courts, and to remove, by writ of error, certain cases from the Supreme Court of this state to the Supreme Court of the United States.(1)
Art. 1379, Sec. 1. If a suit be commenced in any court of this state, against an alien, or by a citizen of this state against a citizen of another state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such court of this state, file a petition for the removal of the cause for trial into the next circuit court of the United States, or district court of the United States, having the powers and jurisdiction of a circuit court, to be held in the district where the suit is pending, and offer
(1) No cause can be transferred from a state court to a court of the United States. Johnson e. Gording
4 Cal. 368.
good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if bail was originally requisite therein, it shall then be the duty of such court of this state to accept the surety and proceed no further in the cause; and all subsequent proceedings which may be taken or had in such court, in contravention of the provisions of this section, shall be void and of no force or effect for any purpose whatsoever.
Sec. 2. A final judgment or decree in any suit in the highest court of law or equity of this state, in which a decision of the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, this state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such, their validity; or where is drawn in question the construction of any clause of the constitution of the United States, or of a treaty, or of a statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be removed by writ of error to, and be reexamined and reversed, or affirmed, in the supreme court of the United States, in the manner prescribed by the laws of the United States; and upon the issuance and service of such writ of error, the chief justice, or any judge of the court, rendering or passing the judgment or decree complained of, upon being applied to by the plaintiff in error, or his attorney, shall sign the requisite citation to the adverse party,
Sec. 3. After a final judgment shall have been rendered in any such suit in the highest court of this state, if the party against whom the decision may have been given, shall, within ten days thereafter, file notice, in writing, with the clerk, of his intention to remove the cause, by writ of error, to the supreme court of the United States, and shall offer sufficient security, to be approved by the judge of the supreme court, or any district court of this state, for the prosecution of such writ of error, it shall be the duty of the said court in which such final judgment was rendered, or any judge thereof, at chambers, to stay all proceedings for such time, not exceeding four months, to be fixed by the said court or judge, as will be sufficient to enable such party to apply for and serve his writ of error in the mode prescribed by the laws of the United States; and upon the receipt of such writ of error the clerk of the court in which the record may be, and to which the writ may be directed, shall make return thereto, and send up the record or a transcript, without the necessity of any other or further order or authority what
Sec. 4. If any judge, clerk, or other officer of any court of this state, shall knowingly and voluntarily act in contravention of the provisions of this act, he sball be deemed guilty of a misdemeanor in office and liable to impeachment and removal from office,
Act of April 2, 1857, in relation to Suits brought on Bonds and Obligations in favor of the State. Art. 1380, Sec. 1. When an action is commenced in any court in this state for the benefit of the same, to enforce the penalty of, or to recover money upon, an official bond or obligation, or any bond or obligation executed in favor of the state of California, or of the people of this state, the attorney, or other person prosecuting the action, may file with the court in which the action is commenced, an affidavit stating either positively, or on information and belief, that such bond or obligation was executed by the defendant, or one or more of the defendants, (designating by whom) and made payable to the people of the state, or to the state of California, and that the defendant or defendants have real estate or interest
in lands, desimating the county or counties in which the same is situated, and that the action is prosecuted for the benefit of the state, and thereupon the clerk receiving such affidavit shall certify to the recorder of the county or counties in which such real estate is situated, the names of the parties to the action, the name of the court in which the action is pending, and the amount claimed in the complaint, with the date of the commencement of the suit.
Sec. 2. Upon receiving such certificate, the county recorder shall indorse upon it the time of its reception, and such certificate shall be filed and recorded in the same manner as notices of the pendeney of an action affecting real estate; and any judgment recovered in an action specified in the first section of this act
, shall be a lien upon all real estate situated in any county in which such certificate is so filed belonging to the defendant, or to one or more of such defendants, and shall bind such real estate for the amount that the owner thereof is or may be liable, upon the judgment, from the filing of the certificate; and the fees due the clerk and recorder, for the services required by this act, shall be a charge against the county where the suit is brought, to be recovered like other costs.
Act of April 22, 1850, for Relief of Persons imprisoned on Civil Process. Art. 1381, Sec. 1. Every person confined in jail on an execution issued on a judgment rendered in a civil action, shall be discharged the refrom upon the conditions hereinafter specified. Sec. 2. Such person shall cause a notice in writing to be given to the plaintiff
, his agent or attorney, that at a certain time and place he will apply to the judge of the district court of the county in which such person inay be confined; or, in case of his absence or inability to act, to the judge of the county court of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his imprisonment. In the county of San Francisco, the application may be made to a judge of the superior court of the city of San Francisco
. Sec. 3. Such notice shall be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the application, in cases where the plaintiff
, his agent or attorney, lives within twenty miles of the place of hearing; and one day shall be abled for every additional twenty miles that such person may reside from the place of hearing.
Sec. 4. At the time and place specified in the notice, such person shall be taken before such judge, who shall examine him under oath concerning his estate and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed, and such judge shall also bear any other legal and pertinent evidence that may be produced by the debtor or the creditor.
Sec. 5. The plaintiff' in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry; and they shall, it required by him, be proposed and answered in writing; and the answer shall be signed and sworn to by the prisoner.
Sec. 6. If upon the examination, the judge shall be satisfied that the prisoner is entitled to his discharge, such judge shall administer to him the following oath, to wit:
do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution ; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to defraud my creditors : so help me God.”
Sec. 7. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause; and the officer, upon the service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause.
Sec. 8. If such judge should not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same manner as above provided, and the same proceedings shall thereupon be had.
Sec. 9. The prisoner, after being so discharged, shall be for ever exempted from arrest or imprisonment for the same debt, unless he shall be convicted of having willfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed.
Sec. 10. The judgment against any prisoner who is discharged as aforesaid, shall remain in full force against any estate, which may then or at any time afterward belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner, in like manner as if he had never been committed.
Sec. 11. The plaintiff in the action may at any time order the prisoner to be discharged, and he shall not thereafter be liable to imprisonment for the same cause of action.
Sec. 12. Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil action, the creditor, his agent or attorney, shall advance to the jailor, within twenty-four hours after such commitment, sufficient money to pay for the support of said prisoner during the time for which he may be imprisoned, and in case the money should not be so advanced, or if, during the time the prisoner may be in confinement, the money should be expended in the support of such prisoner and the creditor should neglect for twenty-four hours to advance such further sum as might be necessary for his support, the jailor shall forthwith discharge such prisoner from custody; and such discharge shall have the same effect as a discharge by order of the creditor.
Act of May 17, 1853, to Limit the hours of Labor. Art. 1382, Sec. 1. Ten hours shall be considered a legal day's labor in any action in law, in any of the courts of this state. See Jurors, Forcible Entry, etc., Land.
ACTION, FORM OF. 1. As action of debt will not lie against the keeper of a gaming table to recover the amount of license. The ely redress is indictment. The People v. Crayeroft, 2 Cal. 243.
2. If an action be improperly brought, the party bringing it having obtained the benefit, cannot avoid the tespaxibility he may have thus incurred by pleading his own malfearance. Turner r. Billagram, 2 Cal. 520.
wiebitutus assumpsit for rent, will not lie in favor of a stranger for the purpose of trying his title; or by ene i two litigant parties claiming land; this action depending upon a contract express or implied. Sampson t. Člar trt, 3 Cal. 196.
4. Vi setion for use and occupation will lie where possession is adverse and tortious, for such possession extieto the idea of a contract, which in all cases of this action must be express or implied. Id. 1. A trespass dies with the trespasser. O'Connor r. Corbitt, 3 Cal. 370.
6. A plaintiff has a right to waive a tort as against factors, and to bring his action to compel them to account kod be the net proceeds arising trom the sales. Lubert v. Chauviteau, 3 Cal. 458.
7. Tazh the defendants became possessed of goods wrongfully it will be sufficient to maintain an action aain! term as consignees or factors. Id.
The distinction in the form of actions et delicto and ex contractu was abolished by statute, but the general princips which govern such actions are retained. Id. 6. tte a suit
is brought upon a bill of lading, made to the plaintiff jointly with another, the plaintiff has De reparate cause of action. Mayo r. Stanbury, 3 Cal. 465.
10. Under our practice it is competent for the plaintiff to recover real property with damages for withholdtez it, and the rents and profits all in the same action and as one cause of action. Sullivan v. Davis, 4 Cal. 291.
11. Ad action will not lie on the mere recital in a mortgage of the existence of the debt. Shafer v. Bear River Y. CO. 4 Cal. 294.
12. An action cannot be maintained against the state unless there is some provision of law to that effect. Heydenfeldt r. Pickering, Oct. T. 1854.
13. An action may be brought for the purpose of determining an adverse claim which defendant makes against plaintiff upon an alleged obligation. King v. Hall, 5 Cal. 82.
14. Au order of injunction restraining the bringing of an action will be reversed. Id.
16. Xon-resident aliens cannot maintain the action of ejectment in this state. Siemssen et al. v. Bofer, July T. 165.
17. one of the defendants was sued by the name of John Cox, service returned upon James Cox, and judg. ment against J. Cor. This is error unless there was something in the record to show that the person served was the person sued. Sutter v. Cox, Oct. T. 1856.
18. The terro “ thing in action arising out of contract " in the fourth section of the practice act, construed to mean express contract. Oliver v. Walsh, Oct. T. 1850.
19. The law will not tolerate the division of a joint right of action into several actions; the whole cause of action must be determined in one. Nightingale v. Scannel, Oct. T. 1856.
20. Where one partner sues for an injury to the partnership property, and makes his co-partner a defendant for want of his consent to join as plaintiff, the recovery must be entire for the whole injury. Id.
21. The act prescribing the manner of maintaining and defending suits by or against counties, applies as well to claims existing before its passage as those which arose afterward. Güllman v. Contra Costa, Oct. T. 1856.
22. In antions upon joint and several contracts an administrator cannot be joined with the survivor. Humphreys r. Crane, 5 Cal. 173; May 0. Hanson, Oct. T. 1856.
23. A county cannot be sued in cases of tort or trespass on the case, without presentation of the claim of damages to the supervisors and rejection by them. McCann v. Sierra Co. Jan. T. 1857.
24. Parties-Lucas, Turner & Co. r. Payne & Dewey, Jan. T. 1857.
26. The surplus of money remaining in the hands of a sheriff after his term of office has expired, cannot be attached, and the sheriff may be liable on his bond, he is a mere bailee and should be garnisheed as a private individual. Graham o. Endicott, Jan. T. 1857.
27. Slander-Butler r. Hawes, Jan. T. 1857.
28. Where several defendants are declared against jointly, and no joint trespass is proved, but only a trespass against one, the plaintiff will recover. McCarron v. O'Connell, Jan. T. 1857.
29. In an action against an agent for not accounting, etc. a request to account and pay over must be shown. Bushnell v. McCauley, April T. 1857.
30. An agent cannot delegate discretionary powers but he may delegate mere mechanical powers or duties. Sayre v. Nicholls, April T. 1857.
Stevenson v. Lick, 1 Cal. 128; Tewksbury v. Laffan, 1 Cal. 129; Turner . Billagram, 2 Cal. 520; Smith v. McDougal, 2 Cal. 586; Johnson v. Totten, 3 Cal. 343; Lubert r. Chauviteau, 3 Cal. 458; Mayo r. Stansbury, 3 Cal. 465; Mayo v. Madden, Jan. T. 1854; Leavitt v. Gushee, 5 Cal. 152; Hunsaker v. Borden,'5 Cal. 288; Johnson v. P. M. S. Co. 5 Cal. 407.
ADMINISTRATOR. 31. In an action against an administrator, when the complaint is founded on an instrument alleged to have been executed by the intestate, it is not necessary, under the statute, that the administrator should deny the signature of the intestate on oath. It must be proved. Heath v. Lent, 1 Cal. 410.
32. A decree of the probate court, ordering an administrator to pay the amount of his indebtedness to the estate into court, is coram non judice. Wilson v. Hernandez, 5 Cal. 437.
33. Where the administrator of a defaulting tax collector is sued for public funds in his hands, and the complaint shows that no relief is sought aguinst the estate, the objection, notwithstanding, that he is sued in his representative capacity, is untenable. People v. Houghtaling, April T. 1857.
APPEAL. 34. The supreme court cannot issue a writ of certiorari to a county court, for the purpose of reviewing a judgment of the latter court. Warner v. Hall, 1 Cal. 90.
33. A stipulation in the submission to arbitration, that neither party should appeal, and a power to confess judgment pursuant to the award, will not bar an appeal from the judginent on the award. Muldrow v. Norris, 2 Cal. 74.
36. An order dissolving an attachment may be appealed. Reiss v. Brady, 2 Cal. 132.
37. No appeal lies froin the judgment of the district court, on an appeal to that court from an order of the court of sessions, upon an application for a ferry license. Webb r. Hanson, 2 Cal. 133.
38. The supreme court has jurisdiction of an appeal when the costs added to the judgment exceed two hundred dollars. Gordon v. Ross, 2 Cal. 156.
39. No appeal lies from proceedings under a writ of habeas corpus, nor are they subject to review. In re Perkins, 2 Cal. 424.
40. The supreme court cannot review on appeal the facts in a case, unless the court below has refused a new trial, applied for on the ground that the verdict is contrary to the evidence, and an appeal is taken directly from such refusal. Ingraham r. Gildermeester, 2 Cal. 483.
41. An appeal will not lie from an order of court refusing to set aside an interlocutory judgment, or former order. Henly v. Hastings, 3 Cal. 341; Stearns v. Marvin, id. 376; Johnson v. Sepulbeda, Jan. T. 1856.
42. In chancery cases, the supreme court has full power to correct the errors of the court below, in whatever shape the appeal is brought up. Grayson v. Guild, 4 Cal. 122.
43. An appeal does not lie from an order in a suit in equity, making a new party defendant. Beck r. San Francisco, 4 Cal. 375.
44. On appeal, every intendment must be in favor of the decision of the court below, and a case will not be reversed unless it appear that the party complaining was injured by the error. Johnson v. Sepulbeda, 5 Cal. 149.
45. An order dismissing an appeal for want of a proper bond is no final judgment, to operate as a bar to a subsequent appeal. Martinez v. Gallardo, 5 Cal. 155.
46. An appeal will lie where judgment for a contempt is entered beyond what the law will allow. Lucas r. Allen, April T. 1855.
47. It is not necessary that the state should file a bond where a case is appealed by her. People v. Clingan, 5 Cal. 389.
48. It is not error for the court to proceed with the trial after notice of an appeal from its decision, refusing a change of venue. Hibberd v. Chipman, Jan. T. 1856.
49. The appeal bond does not operate a release of the lien of the judgment. Low v. Adams, July T. 1856. 50. An appeal does not lie upon an order refusing an injunction. Richards v. McMillan, Oct. T. 1856.
51. An appeal is allowed upon an order refusing to change the place of trial, but not from an order granting the change.
Riccardo Juan v. Ingoldsby, Oct. T. 1856. 52. The failure or refusal to sign a bill of exceptions cannot defeat the right of appeal. People v. Martin, Oct. T. 1856.
53. A judgment of nonsnit having been entered on motion of plaintiff, an appeal does not lie in his faror. Imley v. Beard and Wife, Oct. T. 1856.
54. Where the record contains no bill of exceptions or statement of the case, the appeal must be dismissed. People v. Godkins, Jan. T. 1857 ; McSummers v. Dickinson, Jan. T. 1857.
65. The stay of proceedings consequent on an appeal, only operates upon orders or judgments commanding somo act to be done, and does not reach a case of injunction. Merced Mining Co. v. Fremont, Jan. T. 1857.
56. An order refusing to issue a commission to take testimony, and an order refusing to change the place of trial, are not appealable, though they may be reviewed on appeal from the final judgment. People v. Stillman, Jan. T. 1857.
57. When the appeal is taken bona fide, and not for delay, the appellant court will always permit another undertaking to be filed. Howard v. Harmon, Jan. T. 1855; Coulter v. Stark, Jan. T. 1857.
58. Where a particular defense has been abandoned in the court below, it cannot be the ground of a judg. ment on appeal. Heirs of Nieto v. Carpenter, April T. 1857.
69. Where no statement is filed, errors assigned cannot be reviewed. Bryan v. Berry, April T. 1857.
Gonzales v. Huntley, 1 Cal. 32; Palmer v. Brown, id. 42; Ringgold v. Haven, id. 108; Gunter v. Sanchez, id. 45; Swanston v. Sublette, id. 123; Bunting v. Beideman, id. 181; Vogar v. Barrier, id. 186; Bradley v. Hall, id. 199; Matur v. Brown, id. 221 ; Constant v. Ward, id. 333; Tyson v. Wells, id. 378; People v. McCauley, id. 379; Smith v. P. M. S. S. Co. id. 145; Innis v. The Senator, id. 459; Sterling v. Hapson, id. 478; Griswold v. Sharpe, 2 Cal. 17; Brown v. Graves, 2 Cal. 118; Smith v. Phelps, 2 Cal. 120; Montgomery v. Leavenworth, 2 Cal. 57; Kilburn r. Ritchie, 2 Cal. 145; Buckley v. Stebbins, 2 Cal. 149; Pacheco v. Bernal, 2 Cal. 150; O'Connor e. Stark, 2 Cal. 153; Russell v. Williams, 2 Cal. 158; Marysville v. Buchanan, 2 Cal. 212; Stark v. Barnes, 2 Cal.