« EelmineJätka »
day of February, June and October. In the county of Amador, on the third Monday of February, June and October. In the county of Tuolumne, on the first Monday of March, July and November. In the county of Stanislaus, on the fourth Monday of March, July and November. In the county of San Joaquin, on the first Monday of April, August and December, and on the first Monday of January.—[Act March 14, 1856. Art. 725. 6. In the sixth district
, on the first Monday of February, April, June, August, October and December.-[Act May 4, 1855.
Art. 726. 7. In the seventh district, in the county of Contra Costa, on the first Tuesday of March, June, September and December. In the county of Marin, on the fourth Tuesday of April
, July and November. In the county of Napa, on the third Tuesday of February, May and August, and on the second Tuesday of November. In the county of Solano, on the third Tuesday of March, June, September and December. In the county of Sonoma, on the first Tuesday of February, May and August, and on the fourth Tuesday of October.-[Act Feb. 28, 1856.
Art. 727. 8. In the eighth district, in the county of Del Norte, on the first Monday of May, August and November. In the county of Humboldt, on the first Monday in the months of March, June and September. And in the county of Klamath, on the first Mondays in April, July and October.-[Act March 31, 1857.
Art. 728. 9. In the ninth district, in the county of Shasta, on the third Monday in January and September. In the county of Siskiyou, on the first Monday in March, July and November. In the county of Trinity, on the second Monday in April, August and December.—[Act Marchi 31, 1857.
Art. 729. 10. In the tenth district, in the county of Yuba, on the third Monday of January, April, August and November. In the county of Sutter, on the first Monday of March, June, October and December.-[Act March 8, 1856.
Art. 730. 11. In the eleventh district, in the county of El Dorado, on the fourth Monday in January, on the second Monday in May, and on the third Monday in August and November. In the county of Placer, on the second Monday of January, and on the third Monday of April
, July and October. In the county of Yolo, on the third Monday in March, on the first Monday in August, and on the third Monday in December.-[Act May 4, 1855.
Art. 731. 12. In the twelfth district, in the city and county of San Francisco, on the first Monday of January, March, May, July, September and November, in each year. In the county of San Mateo, on the third Monday of April, August and December.-[Acts April 9 and 29, 1857.
Art. 732: 13. În the thirteenth district, in the county of Merced, on the first Mondays of February, June and October of each year. In the county of Stanislaus, on the second Monday of February, June and October of each year. In the county of Mariposa, on the third Monday of February, June and October of each year. In the county of Tulare, on the
first Monday of March, July and November of each year. In the county of Frezno, on the second Monday of March, July and November of each year.-[Act Feb. 6, 1857.
Art. 733. 14. In the fourteenth district, in the county of Nevada, on the third Monday of May, first Mondays of August and October, and second Monday of December of each year. In the county of Sierra, on the first Monday of April, July, September and November of each year.--[Act April 9, 1857.
Art. 734. 15. In the fifteenth district, in the county of Colusi, on the fourth Mondays of December and May, and the second Monday of August. In the county of Tehama, on the first Monday of February, June and September. In the County of Butte, on the second Monday of January and May, and fourth Monday of August and second Monday of November. In the county of Plumas, on the second Mondays of April, July and October.--[Act March 31, 1857. See Counties.
JUDICIAL DECISIONS. 1. JUSTICES of the peace, alone, have power, under the acts of congress, to try and commit deserted seamen. The commissioners of the United States courts can only arrest and commit for trial. Crandall's Case, 2 Cal. 144.
2. None other than duties of a judicial character can be imposed on county courts or judges. Tuolumne Co. v. Stanislaus Co. Oct. T. 1856; Burgoyne v. Supervisors, Etc. 5 Cal. 9; id. Oct. T. 1856.
3. The county judge may issue an injunction against a bill filed in the district court, but his act is auxiliary to the action of the district court, and must have the same force and efficacy as if it were the direct act of the latter court. Crandal v. Woods, Oct. T. 1856.
4. A judgment rendered without jurisdiction may be attacked, either directly or collaterally, but where there is only irregularity in procuring jurisdiction, the judgment can only be attacked by a direct proceeding, in the court where rendered, or on appeal. Whitwell v. Barbier, Jan. T. 1857.
5. As to judgments of courts of inferior jurisdiction, the rule is different, nothing being implied in favor of their jurisdiction. Id.
6. It is error in a justice of the peace to refuse to allow defendant in suit for a mining claim to prove the value thereof to be over two hundred dollars. Freeman v. Powers, Jan. T. 1857.
7. A justice of the peace has jurisdiction to grant appeals and stay proceedings, nor can such action be reviewed on certiorari. Coulter v. Stark, Jan. T. 1857.
8. A mere obiter dictum is not authority. Haight v. Joice, 2 Cal. 64.
Jurisdiction-People v. Gillespie, 1 Cal. 342; Stevens v. Ross, 1 Cal. 94; Woods v. Barrett, July T., 1855. Judicial notice-People r. Smith, i Cal. 9; Ross v. Austill, 2 Cal. 183; Thorne v. San Francisco, 4 Cal. 127; Irwin e. Phillips, 5 Cal. 140. Stare decisis-Cohas c. Raisin, 3 Cal. 443. Submission-Greeseka v. Brannan, 2 Cal. 517.
See Ciru Practice, Constitutional Construction.
XXIII.-COURTS OF JUSTICE-CIVIL PRACTICE.
1.-COMMON LAW. ARTICLE T35. Common law of England adopted as rule of decision.
II.-FORM OF ACTION, PARTIES, PLEADINGS, EVIDENCE, TRIAL, JUDGMENT, EXECUTION, ETC.
1. Form of Action and Parties. 136. Only one form of action.
745. Defense by married woman, 137. Parties designated.
746. Infant, how to appear. 738. Trial of question of fact not put in issue. 747. Guardian, how appointed. 732. Action, in whose name prosecuted; when assignor 748. Action for injury to child or ward. not to be witness.
749. Plaintiff, who may be joined. T40. Set-off, when not prejudiced by assignment. 750. Defendant, who may be made. 741. Action by executor, etc.
751. Parties, who to be joined. 742. When married woman is party.
752. Separately liable, may be joined. 713. Exception first.
753. Death of party or transfer of interest, effect of. 74. Exceptica second.
754. When court may determine controversy.
2. Place of Trial. 75. Aetists to be tried where subject matter is situated | 757. Actions to be tried where parties reside. 756. Actions to be tried where cause of action arose. 758. Changing place of trial.
3. Manner of Commencing Action, 759. Action, how commenced in certain courts. 767. Service by publication. 760. Complaint, how indorsed; summons, form of. 768. Same. 761. Same.
769. Proceeding where service is made only on some of 162. Answer, when to be made.
several defendants. 76. Notice to be inserted in summons.
770. Proof of service. 764. Notice in action affecting real property.
771. Same. 766. Summons, by whom to be served.
772. Jurisdiction, when it attaches. 766. How served.
4. Pleadings. Ti3, Pleadings, defined; rules of; by plaintiff and de- , 784. Demurrer to; sham pleading. fendant.
786. Pleadings to be subscribed and verified. 774. Complaint, what to contain.
786. Verification, when it may be omitted. 775. Demurrer to.
787. Genuineness of written instrument, when admit776 Same.
ted. 777. Same; amending.
788, Same. 778. Objections to, by answer.
789. Manner of verifying pleadings. 779. Waiver of objections to.
790. Items of account need not be set forth. 780. Answer, what to contain.
791. Irrelevant or redundant matter to be stricken 781. Counter claim.
out. 782. Cross demand.
792. Complaint to recover real property. 783. Several defenses may be set up.
793. Judgment, how pleaded.
5. Provisional Remedies. Arrest and bail
844. Order and affidavit to be filed. 808. Arrest, when may be made.
Injunction809. Order for, how obtained.
845. Defined. 810. Plaintiff to give undertaking.
846. In what cases may be granted. 811. When order may be made, and form.
847. When may be granted. 812. Order to be delivered to sheriff; duty of sheriff on 848. After answer. making arrest.
849. Undertaking on. 813. Order, how executed.
850. Order nisi for injunction. 814. How defendant may be discharged.
851. Injunction to suspend business of corporation. 815. Bail, how given.
852. Motion to dissolve or modify. 816. Surrender in discharge of.
853. When injunction will be dissolved, etc. 817. May arrest defendant.
Attachment818. Judgment against.
854. In what cases may issue. 819. How exonerated.
855. Affidavit. 820. Proceedings after arrest.
856. Undertaking of plaintiff. 821. Notice of justification of bail.
857. Writ, requirement of; several may issue. 822. Qualifications of bail.
858. What property may be attached. 823. How bail to justify.
859. How writ shall be executed. 824. Allowance of bail.
860. Property in hands of third party, how attached. 825. Deposit in lieu of bail.
861. Liability of third party. 826. Disposition of deposit.
862. Examination of third party. 827. Bail after deposit.
863. Return of sheriff. 828. Application of deposit after judgment.
864. Perishable property to be sold. 829. Liability of sheriff as bail.
866. Property claimed by third party. 830. Judgment against sheriff.
866. Judgment, how satisfied. 831. Vacating order of arrest and reducing amount of 867. Same. bail.
868. Proceedings when execution is returned unsatis 832. Same.
fied. Claim and delivery of personal property- 869. Proceedings where defendant recovers judgment. 833. When claim may be made.
870. Discharge of attachment, when may be made. 834. Affidavit to obtain order for delivery.
871. Undertaking of defendant. 835. Order for delivery.
872. Motion to discharge as improperly issued. 836. Proceedings on.
873. Same. 837. Sureties, excepting to.
874. Şame. 838. Defendant may require return.
875. Return of sheriff. 839. Justification of defendant's sureties.
876. When court may order property to be sold. 840. Qualification of sureties.
Deposit in Court841. Property concealed.
877. Court may order subject matter of action to be 842. Sheriff to keep property.
deposited in court. 843. Proceedings where property claimed by third party. 1 878. Appointment of receiver.
6. Trial and Judgment. Judgment in general
891. Postponement of trial. 879. Judgment, defined.
Trial by Jury880. How given; effect of.
892. Jury, how drawn. 881. Against one of several defendants.
893. To be sworn; form of oath. 882. Extent of relief.
894. Challenge to. 883. Dismissal of action or nonsuit, when.
895. Challenge for cause. 884. Judgment on the merits, in what cases.
896. Challenge, how tried. 885. Judgment on failure to answer.
897. Juror becoming sick. Issues, and disposition of
898. Charge to jury. 886. When an issue arises.
899. Jury may decide in court or retire; duty of officer. 887. Issue of law; issue of fact.
900. What papers jury may take with them when they 888. Issue of law, how tried; issue of fact, how tried. retire. 889. Entry of causes on calendar.
901. Jury may return for instruction ; instruction, 890. Either party may bring issue to trial.
ARTICLE 902. Proceeding when jury discharged without ver- 922. Report of referees. dict.
923. Exception, defined. 903. Court may adjourn during absence of jury; sealed 924. How taken.
verdict may be directed; final adjournment, dis- 925. Same.
926. When implied. 204. Ferdict, how given.
927. New trial, defined. 905. Verdiet may be corrected.
928. For what causes granted. 906. Verdict, how recorded; juror disagreeing to, jury 929. When application to be made on affidavit. to be again sent out.
930. Prerequisites to motion for. 907. Taking down testimony.
931. When application to be made. 903. Postponement of trial.
932. Judgment, how and when entered; argument of 909. Verdict, kinds of. 910. Same.
933. Judgment when counter claim exceeds demand 911. When to find amount of recovery.
of plaintiff. 912. In action to recover specific property.
934. In action for possession of personal property. 913. Entry in minutes.
935. Judgment book. 914. Jury trial, when may be waived.
936. In case of death of party. 915. Trial by the court.
937. Judgment roll. 916. Order of reference.
938. Lien of judgment. 917. Same.
939. Docket, how kept. 918. Same.
940. To be open for inspection. 919. Number of persons to whom ordered.
941. Judgment, how made lien in other county ; dura920. Objection to appointment of referee.
tion of lien. 921. Objection, how disposed of.
942. Satisfaction of judgment, how entered.
7. Execution. 943. Execution may issue on judgment any time with- 1 961. Certificate of sale, etc. in five years.
962. Same. 944. Form of execution.
963. Sale of real estate, when absolute. 945. On judgment on joint contract.
964. When subject to redemption. 946. Execution, when returnable.
965. Redemption, how made. 997. When judgment requires the performance of other 966. Same.
act than payment of money or delivery of prop-967. Same.
968. Same. 948. How issued after five years.
969. Same. 949. After death of party.
970. Waste may be restrained. 950. May issue to different counties.
971. Rents and profits. 961. Property liable to.
972. When purchaser may recover price paid from 62. Proceedings when property is claimed by third judgment creditor. party.
973. When judgment debtor may be required to 'an953. Property exempt from.
swer, etc. 954. How satisfied.
974. Person indebted to judgment debtor may pay exe955. Sale of property, notice, how given.
cution. 356. Penalty for selling without notice.
975. Debtor of judgment debtor may be required to 957. Sales, how made.
answer. 958. In case purchaser refuses to pay, property to be 976. Witnesses, resold.
977. Property liable to execution. 359. Proceedings to enforce payment of loss on resale. 978. Court may order cross action in certain case. 60. Amount for which officer liable.
979. Penalty for disobedience of order of referee.
8. Actions in Particular Cases. Action for foreclosure of mortgages
992. Court may allow a survey to be mado. 980. Court shall have power to direct sale of property. 993. Order for survey. 981. Surplus after sale, how disposed of.
994. Mortgage not to be deemed conveyance. 62. Sale when debt is not due.
995. Court may enjoin injury. Action for nuisance, waste, trespass, etc.- 996. Damages for injury, by whom recoverable. S. Nuisance, defined; action for ; judgment for. 997. Action for recovery of possession, not to be pre984. Waste, action for; judgment for.
judiced by alienation. 85. Injuring timber, etc. liability for.
Action for partition of real property966. Same.
998. Action by tenants in common, etc. 987. Forcible or unlawful entry, etc; judgment for. , 999. Complaint, what to set forth. Action relative to real property
1000. Parties. 938. Action by person in possession.
1001. Notice to be filed in recorder's office. 989. Costa, when not to be recovered.
1002. Summons. 920. Action where right has terminated pendente lite. 1003. Publication of. 991. Improvements, value of to be allowed.
1004. Answer, what to set forth.
ARTICLE 1005. Rights of parties may be determined.
1037. Same. 1006. Certificate as to liens on property,
1038. Compensation when partition is unequal. 1007. Persons holding liens to be made parties. 1039. Where share of infant is sold proceeds payable 1008. Notice.
to guardian. 1009. Sale of property, where may be ordered.
1040. Proceeds of sale of interest of insane person, 1010. Partition, how to be made.
how disposed of. 1011. Report of referees.
1041. Partition may be consented to by guardian, etc. 1012. Judgment on; effect of.
1042. Cost of partition. 1013. Same,
1043. Single referee may be appointed by consent of 1014. Expense of referees.
parties. 1015. Lien on undivided interest.
Action for usurpation of office1016. Estate for life or years, how set off.
1044. Action to be brought by attorney-general. 1017. Proceeds of sale of encumbered property, how 1045. Complaint, what to state; defendant may be arapplied.
rested. 1018. Where there are other securities for lien, 1046. Judgment, how rendered. 1019. Proceeds of sale and securities to be distributed 1047. When person alleged to be entitled may enter under direction of court.
on office, 1020. Determination of conflicting claims of parties. 1048. Damages recoverable. 1021, Sales, how made.
1049. Rights of several may be tried in one action. 1022. Same.
1050. Judgment wher: defendant has intruded into office 1023. Same.
Action against vessels, etc.1024. How tenant for life or years may receive satisfac- 1051. Vessels, etc. for what liable. tion for estates sold.
1052. Action against. 1025. Same.
1053. Complaint. 1026. Same.
1054. Summons. 1027. Contingent future right or estate, how settled. 1055. Attachment. 1028. Terms and mode of sale.
1056. Requisites to issuance. 1029. Certain parties not to be interested in purchase. 1057. Writ, to whom directed, etc. 1030. Report of sale.
1058. How executed. 1031. Order to execute conveyances, etc.
1069, Answer of defendant. 1032. Where party entitled to share in property be- 1060. Proceedings how conducted. comes a purchaser.
1061. Discharge of attachment. 1033. Conveyances, where recorded and effect. 1062. Sale of vessel, etc. and application of proceeds. 1034. Disposition of proceeds of sale where an un- 1063. Seaman's wages, how secured. known owner is interested.
1064. Same. 1035. Same.
1065. Notice of sale, what to contain. 1036. Security by referees on sale.
9. Appeal. Appeal in general
1087. Appeal perfected, stays all further proceedings. 1067. Judgment, how reviewed.
1088. Undertaking may be in one or several instru1068. Order, how vacated.
ments. 1069. Parties designated.
1089. Justification of suretios necessary. 1070. In what cases appeal may be taken.
1090. Appeal, how perfected in other cases not pro 1071. How taken.
vided for. 1072. Statement, how annexed to record; what to con- 1091. Hearing of appeal. tain.
1092. Judgment on appeal. 1073. Waiver of.
1093. Costs. 1074. Time may be enlarged.
1094. Decisions ou appeal to be in writing. 1075. How certified.
. Appeal to supreme court from county court1076. To be annexed to judgment roll.
1095. In what cases taken. 1077. Certain provisions not applicable to appeals from 1096. Security, how given. an order, etc.
1097. Hearing; papers to be furnished by appellant. 1078. On appeal from judgment what may be re- · Appeal to district court from probate courtviewed.
1098. In what cases taken. 1079. Same.
1099. When to be taken; hearing. 1080. Duty of appellant.
Appeal to county court from justices and reAppeal to supreme court from district court
corder's courts 1081. In what cases may be taken.
1100. How taken and tried. 1082. Undertaking of appellant.
1101. When heard on statement of case; new trial may 1083. Same; when judgment stayed by appeal.
be ordered; how conducted; dismissal; judg1084, Same.
ment. 1085. Same.
Appeal where county, city, etc. is party, 1086. Same.
1102. How taken; presiding officer to perfect appeal.