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Application for new trial.

Parties may appeal.

Appeal, how taken.

Transcript of docket to be transmitted.

Undertaking to be filed in cases of appeal.

within ten days after the entry of judgment, for any one of the fol lowing causes:

1st. Accident or surprise, which ordinary prudence could not have guarded against.

2d. Excessive damages, appearing to have been given under the influence of passion; or,

3d. Insufficiency of the evidence to justify the verdict or other de

cision.

4th. Newly discovered evidence material for the party making the application, which he could not with reasonable diligence have discovered and produced at the time.

SEC. 623. The application shall be made upon affidavit and notice. The affidavit shall be filed with the justice, with a statement of the grounds upon which the party intends to rely. The adverse party may use counter affidavits on the motion, provided they be filed one day previous to the hearing of the motion.

SEC. 624. Any party dissatisfied with a judgment rendered in a justice's court, may appeal therefrom to the county court of the county, at any time within ten days after the rendition of the judg ment. (1)

Sac. 625. [Repealed.]

SEC. 626. An appeal shall be taken by filing a notice of appeal with the justice and serving a copy on the adverse party. (2)

SEC. 627. Upon receiving the notice of appeal, and the under taking, as required in the next section, and on the payment of the costs of the action, the justice shall transmit to the clerk of the county court a copy of his docket in the case, the undertaking filed, and the notice of appeal. (3)

SEC. 628. An appeal from a justice's court shall not be effectual for any purpose unless an undertaking be filed with two or more sureties, approved by the justice, in a sum equal to twice the amount of the judgment and costs, when the judgment is for the payment of money; or twice the value of the property added to twice the amount of the costs, when the judgment is for the recovery of specific personal property; and shall be to the effect that the appellant will pay the amount of the judgment appealed from, or the value of the property specified in such judgment, as the case may be: Provided, the judg ment shall be affirmed by the appellate court, together with the costs on the appeal. If the judgment appealed from be other than for the recovery of money or specific personal property, the amount of the

(1) (2) (3) Amendments inserted from Stat. 1853, p. 280.

undertaking on appeal to stay proceedings, shall be fixed by the justice, and shall be to the effect that the appellant will pay all costs on appeal, and all damages which respondent may sustain thereby: Provided, the judgment appealed from be affirmed. (1)

SEC. 629. If an execution be issued, on the filing of the undertak- Stay of proceed ings by appeal. ing, staying all proceedings, the justice shall, by order, direct the officer to stay all proceedings on the same. Such officer shall, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property, or proceeds thereof, as may be necessary to pay the same.

furnish papers

SEC. 630. The party appealing shall furnish to the county court Appellant to the papers mentioned in section eleven [627] of this act, certified by to court. the justice to be correct. (2)

SEC. 631. Costs shall be allowed to the prevailing party in a jus- Costs. tices' court, as follows:

1st. To the plaintiff, ten per cent. on the amount of the money, or the value of the property recovered, if the action was litigated; five per cent. if the action was not litigated:

2d. To the defendant, ten per cent. on the amount or the value of the property claimed by the plaintiff in his complaint:

allowance.

SEC. 632. In addition to the costs, as allowed in the last section, Additional the prevailing party shall be allowed his money disbursements in the action.

receive moneys

and constables.

SEC. 633. Justices of the peace shall receive from the sheriff or Justices to constables of their county, all moneys collected on any process or or- from sheriffs der issued by their courts respectively, and all moneys paid to them in their official capacity, and shall pay the same over to the parties entitled or authorized to receive them, without delay. For a violation of this section they may be removed from their office, and shall be deemed guilty of a misdemeanor.

costs.

SEC. 634. Justices of the peace may, in all cases, require a deposit Security for of money, or an undertaking, as security for costs of court, before issuing a summons.

applicable.

SEC. 635. The provisions of sections 519, 520, 523, 525, 526, 527, Provisions made 531, and 532, shall be applicable to justices' courts and actions therein.

(1) Amendments inserted from Stat. 1853, p. 280. (2) Amendment inserted from Stat., 1853, p. 281. section 630, is section 627 of this act, and has been inserted in brackets.

Section 11 referred to in

TITLE XVII.

OF PROCEEDINGS IN CIVIL CASES IN RECORDERS' AND MAYORS' COURTS.

Actions in

SECTION 636. Civil actions in recorders' and mayors' courts shall mayors' courts, be commenced by filing the complaint, setting forth the violation of

recorders' and

how commenced.

the ordinance complained of, with such particulars of time, place, and manner of violation, as to enable the defendant to understand distinctly the character of the violation complained of, and to answer the complaint. The ordinance may be referred to by its title. The complaint shall be verified by the oath of the party complaining, or of his attorney, or agent.

Summons to be issued.

Plea, answer or denial.

Trial, how had.

Appeal to county court.

Actions, how conducted.

To what courts these provisions to apply.

SEC. 637. Immediately after filing the complaint, a summons shall be issued, directed to the defendant, and returnable either immediately, or at any time designated therein, not exceeding four days from the date of its issuance.

SEC. 638. On the return of the summons the defendant may plead to the complaint, or he may answer or deny the same. Such plea, answer, or denial, may be oral or in writing, and immediately thereafter the case shall be tried, unless for good cause shown an adjournment be granted.

SEC. 639. In all actions for violation of an ordinance where the fine, forfeiture, or penalty imposed by the ordinance is less than fifty dollars, the trial shall be by the court. In actions where the fine, forfeiture, or penalty imposed by the ordinance is over fifty dollars, the defendant shall be entitled, if demanded by him, to a jury of six persons.

SEC. 640. From a judgment in a civil action in a recorders' or mayor's court, an appeal may be taken to the county court. The appeal shall be taken and the proceedings thereon conducted in the same manner as appeals are taken from a judgment in a civil action in a justices' court, and as the proceedings thereon are conducted.

SEC. 641. All proceedings in civil actions in recorders' and mayors' courts, except as herein otherwise provided, shall be conducted in the same manner as in civil actions in justices' courts.

SEC. 642. The provisions of this Title shall be applicable to civil actions in recorders' and mayors' courts already established, or which may hereafter be established in any incorporated city of this

state.

TITLE XVIII.

MISCELLANEOUS PROVISIONS.

rules.

SECTION 643. The supreme court may make rules not inconsistent Courts to make with the constitution and laws of the state, for its own government, and the government of the district courts, and 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.

court of San

sheriff.

SEC. 644. The county clerk shall be the clerk of the county County clerk. court, the court of sessions, and the probate court of his county. Until otherwise provided by law, the clerk of the superior court Clerk of superior of the city of San Francisco shall be appointed by the said court. Francisco. SEC. 645. If an action be brought against a sheriff for an act Action against done by virtue of his office, and he give written notice thereon to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties; and the court or judge in vacation may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs.

understanding

language.

SEC. 646. Whenever a summons, or other process, is served upon Service of process a party who is unable to read, or who does not understand the on party not English language, it shall be the duty of the officer making the ser- the English vice to explain to such party the nature of the summons, or other process. In the counties of Santa Clara, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Contra Costa, Los Angeles, and San Diego, it shall be the duty of the officer to give to the defendant, if said defendant shall require it, a copy of the summons or other process in the Spanish language; and in the counties of Santa Barbara, San Luis Obispo, Los Angeles, and San Diego, it shall be lawful, with the consent of both parties, to have the process, pleadings, and other proceedings in a cause in the Spanish language.

clause.

SEC. 647. Words used in this act in the present tense shall be Interpretation 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 affirmation or declaration; signature or subscription, to 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.

repealed.

SEC. 648. The following statutes, namely: the act entitled "An Statutes act to regulate proceedings in civil cases in the district court, the superior court of the city of San Francisco, and the supreme court,"

When act to take effect.

Term of office.

To give bond and take oath of office.

Vacancies, how supplied.

passed April twenty-second, eighteen hundred and fifty; the act entitled "An act to regulate proceedings against debtors by attachment," passed April twenty-second, eighteen hundred and fifty; the act entitled "An act providing for the collection of demands against vessels and boats," passed April tenth, eighteen hundred and fifty; the act entitled "An act to regulate proceedings in courts of justices of the peace in civil cases," passed April tenth, eighteen hundred and fifty; and the act entitled "An act to regulate proceedings in the county courts in cases of appeal from the courts of justices of the peace," passed April eleventh, eighteen hundred and fifty; the act entitled "An act respecting set-offs," passed [April] twenty-second, eighteen hundred and fifty, are hereby repealed; but such repeal shall not invalidate any judgment rendered, or order made, or any proceeding already taken by virtue of said statutes.

SEC. 649. This act shall take effect on the first day of July of the present year.

CHAPTER CXXIV.

AN ACT concerning the Office of County Assessor. (1)—[Passed
March 27, 1850.]

The People of the State of California, represented in Senate and
Assembly, do enact as follows:

SECTION. 1. The county assessor shall hold his office for the term of one year from the date of his election and until his successor is elected and qualified, and shall do and perform all the duties which are now or may hereafter be required of him by law.

SEC. 2. He shall, before entering on the duties of his office, execute bond, with two or more freehold sureties, to the acceptance of the county judge of his county, in the penal sum of five thousand dollars, conditioned for the faithful discharge of all duties imposed on him by law, and take the oath of office prescribed by law, which shall be endorsed on his certificate of election. (2)

SEC. 3. In all cases where the office of county assessor becomes vacant, from any cause whatever, and the interests of the county and state require that such vacancy should be filled previous to the next annual election, the court of sessions of the county shall appoint some

(1) For election of, see ante, pp. 240, 241.

(2) For oath of office, see ante, p 243, and for additional bond, see post, Chap. 127, Art. 8, Sec. 8.

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