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Full text of "Synopsis of lectures on code pleading and practice, delivered in College of law, University of Southern California"

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CODE PLEADING 
AND PRACilCE 

By James G« Scarborough, Esq. 

















University o: 
Southern ] 
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UNIVERSITY 

OF CALIFORNIA 

LOS ANGELFS 



SCHOOL OF LAW 
LIBEIARY 



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SYNOPSIS OF LECTURES 



ON 



Code Pleading and Practice 



DELIVERED IN COLLEGE OF LAW 
UNIVERSITY OF SOUTHERN CALIFORNIA 



BY 



JAMES G. SCARBOROUGH, ESQ. 

OF LOS ANGELES BAR 



T 



NOTE 

This little book is not issued as a treatise on Code Pleading, nor to 
establish a reputation as an author, nor to sell for profit. 

Its mission is to present as briefly and concisely as possible the 
definitions, classifications and general rules relating to remedies, pleadings, 
proceedings and practice under the Reformed Procedure established l)y the 
Codes, for use of the students in following these Lectures. 

No suitable text-book being available, it was found necessary to present 
the subject by a series of Lectures so arranged as to develop the study in a 
natural and logical order. A very brief outline of these Lectures was 
prepared and used, but has proven insufiicient. Now. this is a revision and 
enlargement of that outline, designed to cure its defects and to give the 
student more aid and assistance in the study and development of the subject. 

The Lectures and this synopsis are based upon the California Codes, but 
sufficient general citations are given to enable the student to compare them 
with Codes of other States. 

It is regretted that this synopsis must be printed for use, before it is 
completed or properly corrected, and for that reason many errors may be 
found; but the purpose is to complete and perfect this presentation of the 
subject by further revisions as time will permit. 

It is sincerely hoped that a careful and diligent study of this Synopsis, 
extended and illustrated by examination of the authorities cited, will aid 
the student in obtaining a more accurate knowledge of Code Pleading. 

THE AUTHOR. 

September, 1915. 



Copyright, 1915, by James G. Scarborough, L,os Angeles, Cal. 



TABLE OF LECTURES 

1. Rights and Remedies Sec. 1 

Defined — How Arise — Classified. 

2. Civil Action 16 

Form — Theory — Classified — How Conducted. 

3. Civil Action, (Continued) 30 

When May I^e Commenced — Limitations. 

4. Complaint — Its Contents 42 

Defined — Title of .\ction — Courts and Their Jurisdiction. 

5. Complaint — Its Contents, (Continued) 60 

Venue of Action — Change of Venue. 

6. Complaint — Names of Parties 89 

Real Party in Interest — Assignees — Principal and Agent. 

7. Complaint — Names of Parties 93 

Trustees — Executors, etc. — Heirs — Incompetents — Parents. 

8. Complaint — Names of Parties 105 

Married Women — Persons Associated. 

9. Complaint — Names of Parties 114 

Corporations — Public Bodies and Officers — 
Taxpayers— Fictitious. 

10. Complaint — Names of Parties 121 

Adding- or Substituting — Intervention — Interpleader. 

11. Complaint — Statement Cause Action 123 

Defined — Theory — How Alleged — Examples. 

12. Complaint — Statement of Cause 140 

Joinder Causes — Demand of Relief — Signing — 
Verification — Notice of Action. 

13. Acquiring Jurisdiction Over Defendant 150 

Appearance — Personal Service Summons. 

14. Acquiring Jurisdiction Over Defendant 154 

Publication — Personal Service Out of State. 

15. Defendant's Objections to Complaint 174 

To Service — Demurrer — Motion to Strike — 
Judgment on Pleadings. 

16. — Answer — Defense by Denial 186 

Defined — Classified — Explained. 

17. Answer — Defense by New Matter 193 

Defined — Classified — How Plead. 

18. Answer — Counter-Claim 209 

Defined — When and How Plead. 

19. Cross-Complaint 222 

Defined — When and How Plead. 

20. Plaintiff's Objections to Answer and Cross-Complaint 232 

Demurrer — Alotions Strike — Settle Issues — 
Judgment on Pleadings. 

21. Amendments of Pleadings and Proceedings 250 

When and How Vacated or Amended. 

22. Supplemental Pleadings 265 

Construction of Pleadings, 274. 

23. Dismissal of Actions 277 

Defaults and Relief Therefrom, 284. 

24. Provisional Remedies 294 

Arrest and Bail, 295; Attachment, 302. 

25. Provisional Remedies, (Continued) 313 

Claim and Delivery, 313; Receivers, 319. 

26. Provisional Remedies — Injunction 328 



8486«5 



27. Provisional Remedies — Deposit in Court 340 

Offer ComprKinise. 340; Inspcclion, 348; 
I'.xaniination Party, 351. 

28. Trial— Preparation for .^.... 354 

Scttin.n — Continuance — Procuring Evidence — Brief. 

29. Trial— Before Referee 367 

Wlitn Reference Ordered — How Trial Conducted. • 

30. Trial by Jury - 381 

jury Defined — Flow Selected — How Trial Conducted. 

31. Trial— by Court— How Conducted 395 

32. Costs — When Allowed and How Claimed 410 

Judgment — Defined and How Entered, 416. 

33. Execution — When and How Issued 424 

Supplementary Proceedings, 432. 

34. Exceptions — Bill of Exceptions 438 

35. Reviewing Orders or Decisions by Trial Court 453 

New Trial — Changing Judgment. 

36. Appeals from Superior Court 471 

When and How Taken. 

37. Appeals from Superior Court 485 

How Presented — What Questions Considered. 

38. Appeals to Superior Court from Inferior Courts 503 

How Taken and Heard. 

39. Selection of Remedies or Theories 517 

Classification — Rules for Selection. 

40. Actions for Damages on Contracts or Torts 535 

Special Proceedings Relating to Same, 550. 

41. Actions for Equitable Relief on Contract 553 

Cancellation. 557; Rescission, 563; Reformation, 571; 
Reissuance, 576; Quiet Title, 582. 

42. Specific Performance of Contract 592 

Of Legal Duties bj' ^Mandamus. 604. 

43. Actions Involving Trusts and Accounting 621 

To Remove Trustee, 623; Appoint Trustee, 628; 
Enforce Trusts, 636; Accounting, 649; 
Creditor's Bill, 656. 

44. Actions Involving Liens 665 

Foreclosure, 667; Redemption, 678; Subrogation, 688; 
Contribution, 691; Taxes, 694. 

45. Actions Affecting Personal Status 700 

Divorce, 701; Annulment, 710; Support, 717; 
Adoption, 722; Probate Proceedings, 724; 
Quo Warranto, 729; Change of Name, 734; 
Dissolution, IZl . 

46. Actions Injuries to the Person 743 

Habeas Corpus, 745; False Imprisonment and 
Malicious Prosecution, 748; Libel and Slander, 756; 
Assault and Battery and Trespass, 762; Other Actions, 768. 

47. Actions Relating to Personal Property 776 

Replevin, 778; Conversion, 787; Trespass, 798; 
Quiet Title, 804. 

48. Actions Relating to Real Property 810 

Ejectment, 812; Forcible and Unlawful Entry and Detainer, 
819; Quiet Title, 827; Trespass and Waste, 833; Slander 
Title, 841; Partition, 843; Condemnation, 845. 

49. Actions Involving Negligence 850 

To Person and Property. 

50. Actions for Preventive Relief 872 

Permanent Injunction — Certiorari — Prohibition — 
Nuisance. 



SYNOPSIS OF LECTURES 

LECTURE 1. 
Remedies — Defined and Classified. 

System of Jurisprudence, or Laws, is divided into two classes : 

1. Those that define or declare the rights and duties of persons. 

2. Those that prescribe the remedies for their protection or redress. 

Civil Code (C.C.) defines civil rights and duties. 
Civil Code Procedure (C.C.P.) defines civil remedies. 
Political Code (Pol. C.) defines political rights and duties. 
Supplemented by Statutes and Common Law. 18 Cal. App. 10. 



2. A Right is that which a person is entitled to have, or do, or receive 
from others within the limits prescribed by law. 

Rights as to their origin are of two kinds : 

1. Common law or Natural rights. 2. Statutory rights. (62 Cal. 
107) ; 8 Cal. App. 505; 54 Am. Dec. 219; 8 Cyc. 877. 
Both of which are further classified : — 

First: Those pertaining to the person: 

1. Status. — as citizen, married person, parent, officer, etc. 

2. Capacity, — as infant, adult, or sane, etc. 
165 Cal. 776. 

Second : Those pertaining to propertv in things : 

1. Real Rights— in Rem: C.C. 654-672, 732, 748. 

(a) Real and personal property and its enjoyment. 

(b) Life, body, good name, freedom. C.C. 43. 

(c) Reciprocal aft'ections in domestic relations. C.C. 49. 

2. Personal Rights — in Personam. 

(a) Arising from contracts, express or implied. C.C. 1427, 

1549. 

(b) Arising by operation of law from certain relations. C.C. 

1721-3268: C.C. 980-995, 1458: 29 Am. Rep. 357; Cal. 
Con. Art. I and II; Pol. C. 54-60; 34 Cvc. 1763; 1 Pom. 
Eq. Jur., Sec. 92-95; 149 Cal. 80; 144 Cal. 234. 

3. In connection with each right, there exists a corresponding duty. This 
duty is a lawful obligation resting upon one or more persons to per- 
form or omit some act in fulfillment or protection of, or in redress for 
breach, or injury to, a right vested in another, and may arise either — 

1. From contract voluntarily made or assumed according to law, or 

2. Implied by law from certain relations of persons, or 

3. Imposed bv law in certain situations of persons. 

C.C. 1427. 1428. 1619-1622, 1708-1715. 1721-3268; 1 Pom. Eq. Tur. 
Sec. 91 ; Pom. Rem. 1 ; 1 C.T. 985. 
Moral obligations. 108 Cal. 19. 



4. A breach or violation of this right and duty constitutes a wrong, from 
which there arises the right to a remedv for redress or relief. Wrongs 



and Remedies are reciprocal. Wherever there is a wrcjnt;" there is a 
remedy for redress, or reHef. 24 Cal. App. 331 ; C.C. 3323, 3520; 9 Cal. 
81; 1 Pom. Eq. Jur. Sees. 91, 423; 1 Cyc. 700; 1 C.J. 985-993. 



A Remedy is the means provided by law for th(? protection and enforce- 
ment of a right, and the corresponding dnty, or the redress of a wrong 
or injury; and it arises thus — 

Primary Right , \'iolation or ilnjury or _ Remedy and 

Corresponding Duty Breach Damage ~ Relief. 

Under Code, a remedy mav be Legislative, Executive, or Judicial. 

1 Cyc. 645, 700; 1 Pom. Eq. Jur. Sec. 90, 91; 152 Cal. 388; 60 Cal. 

441 ; 163 Cal. 561 ; Pom. Rem. 2 ; 1 C.J. 944, 964, 984. 



The Right and Dutv are governed by the laws of that Country or State 
as follows;— 1. C.J. 984, Sec. 92. 

1. Arising from contract, where made or to be performed — Lex Loci 
Contractus. C.C. 1646; 17 Cal. App. 439; 163 Cal. 485. 

2. Relating to real property, where situated — Lex Rei Sitae, C.C. 755. 

(a) Applies also sometimes to personal property. 95 Cal. 184. 

3. Relating to rights of person and personal property, domicil of 
owner — Lex Loci Domicilii. C.C. 946; 165 Cal. 243. 

4. Arising from Tort, where committed — Lex Loci Delecti — but ac- 
tion therefor is transitory and may be brought anywhere juris- 
diction over tort feasor mav be obtained. 10 Cal. App. 699; 150 
Cal. 438; 22 Am. & Eng. Enc. Law 1318-1378; 152 Cal. 201 ; 1 C.J. 
984; Sec. 62 post. 

The Remedy is governed by the laws of the State or Country where 
sought or pursued — Lex Fori — and in Code States is found : 

1. In the Constitution, Codes, or Statutory Law of the State. 

2. General Rules of Common Law. 160 Cal. 90 ; 168 Cal. 642 ; C.C.P. 
1897, 1899, 421, 4; Pol. Code 4466-4468; 22 Am. & Eng. Enc. L. 
1378-1387; 1 Cyc. 746; 1 C.J. 984; 6 L.N.S. 658. 

3. Rules of Practice adopted bv Courts in pursuance of law. 98 Cal. 
120; 146 Cal. 138. 



The State or Country may at any time change its laws as to remedies, 
so long as some remedy is provided. This rule relates to 

1. Character of remedy, mode of procedure, limitations, rules of law, 
and Equity, rules of evidence or mode of proof, etc. 

2. Cannot change when the remedy enters into contracts made. 

3. Change is limited when special remedy is prescribed for right 
created by Statute. 

4. The change cannot affect vested rights — what is vested right. 113 
Cal. 96; 9'Cal. 81 ; 146 Cal. 621 ; 148 Cal. 720; 1 Cyc. 705^; 89 Cal. 
387; 162 Cal. 226. 

5. Changing laws as to validity contracts, not retroactive. 162 Cal. 
455 ; 20 Cal. App. 630. 



Judicial Remedies are those administered by Courts and Judicial offi- 
cers empowered for that purpose by the laws of a State, and of two 
kinds : 
1. Actions. 2. Special Proceedings. C.C.P. 20, 21 ; 1 Cyc. 700. 



10. A Ci\il action is the ordinary proceeding in a Court for the enforce- 
ment or protection of a right or redress or ])reventi(jn of a wrong, and 
arises either — 12 Cal. A])p. 22?. 

1. From l)reacli of ol)ligations created hy contract express (jr implied; 

(a) To enforce same or recoxer chimages for breach ; or 
17 Cal. App. 439; 132 Cal. 421. 

2. From breach of (hities imposed by law resulting in injury to i)er- 
son or property rights. Sec. 524 post. 

(a) To ])rotect or recover identical rights, or damages for the 
injury. C.C.P. 22, 25-30 : 1 Cvc. 713-729 ; 1 C.). 930. 



11. Civil Actions, under the Codes, are not classified or distinguished by 
any forms, but only by the origin, or nature of rights and duties in- 
volved, or purpose for which pursued. 
First : By origin of rights and duties involved. 

1. Ex contractu (on contracts) — growing out of breach oi contract 
obligations, and brought to enforce its terms. 

2. Ex delicto (torts) — growing out of \iolation of duty imposed 
by law and brought to redress the injurv. C.C. 25-30; 129 Cal. 
68; 1 Cyc. 736; Pom. Rem. 48; 1 C.J. 1013-1040; Sec. 520 post. 

Second : By nature of claims and defenses involved ; 

1. Legal — when rights, claims and defenses are go\-erned l)y rules 
of common law or statute. 

2. Equitable — when claims and defenses are governed by rules of 
Equitv or Old Chancery Practice, as modified bv Code, 1 Pom. 
Eq. Jur. 108-117; 2 Cal. 463, 590; Pom. Rem. 8-13; 1 C.P 1042- 
1053 ; Sees. 525-527 post. 

Third : By purpose or elTect of the action — 

1. In rem — when such purpose or effect is 

(a) To afTect or dispose of title, or possession of, or enforce 
liens upon property rights. 

(b) To enforce a personal claim upon pro])erty seized by pro- 
visional remedy prior to judgment. 10 Cal. App. 699. 

(c) To determine status of a person, or right of inheritance 
or succession. C.C.P. 1908; 60 Cal. 125;'22 Cyc. 1102; 150 
Cal. 306; 157 Cal. 22; 112 Cal. 101; 1 C.J. 1041. 

2. In Personam — when its only purpose is to enforce — 

(a) Claims for money damages by judgment and execution. 

(b) Equitable duties or remedies except those in Rem, above- 
mentioned. 1 Cyc. 730; 1 C.J. 929, 1041; Sec. 530 post. 

Fourth : Actions are not confined to any one class — may involve ele- 
ments of all classes. Sec. 529 post. 



12, Relief is that sought to be recovered by the remedy — and is of three 
kinds ; 

1. Compensatory — to recover equivalent in money. C.C. 3281; Sec. 
536 post. 

2. Specific — to recover identical thing or right. C.C. 3367; Sec. 592 
post. 

3. Preventive — to prevent threatened wrong or breach. C.C. 3368; 
Sec. 872 post ; C.C. 3274-3423. 



13. The following terms are used in connection with actions, and thus 
defined : 

1. Right of action — is the right to ])rosecute a judicial remedy. 
Tom. Rem. 347-348; 1 C.J.' 945, 951. 

2. Cause of action — is the facts showing a right and duty, the wrong 
or injury thereto, and damage resulting therefrom. 163 Cal. 561 ; 
132 Cal. 421; 7Z Cal. 455; Pom. Rem. 346-348, 412-418; 1 C.J. 
935, 952. 

3. Subject of action — is the physical thing or facts concerning which 
the judicial remedy is prosecuted. Pom. Rem. 651 ; 1 C.J. 946. 

4. Object of action — is the thing sought to be recovered by the ju- 
dicial remedy — the relief sought. 

1 Cyc. 641-643; Pom. Rem. 381-384; 1 C.J. 940. 



14. "Special Proceedings" are those judicial remedies specifically provided 
in Statute, and different from the Common Law or Chancery remedies. 
They exist and may be pursued, only for the time and purpose, and in 
the manner provided in the law creating them. 162 Cal. 455; 159 Cal. 
65 ; 135 Cal. 375. 



15. When violation of a right admits of both a civil and criminal remedy, 
the right to prosecute the one is not merged in the other. C.C.P. 32; 
116 Cal. 402; 1 C.J. 954. 
Difference between a Remedial and Penal Statute. 105 Cal. 600. 



LECTURE 2. 
Civil Action — Form and how conducted. 

16. There is only one form of civil action under Code: — 

1. This abolishes all common law forms and writs. 

2. Same Court adjudicates legal and equitable rights in same action. 

3. This applies to all kinds of civil actions whatever their origin, 
nature or purpose as heretofore classified. 

4. In this one form, all facts are plead, claims and defenses made, and 
relief obtained as under the old system. C.C.P. 307, 76; 1 Enc. 
PI. and Prac. 142-145; 139 Cal. 473; 22 Cal. 569; 21 Cal. 130; 120 
Pac. 627 (Okl.) ; 97 Cal. 504; 17 Cal. 498; 18 Cal. App. 17; Pom. 
Rem. 4-7. 



17. This abolishing of forms of actions and union of law and equity ac- 
tions in one Court, have not effected any change or substantial modi- 
fication, except as to modes of procedure necessary to conform thereto : 

1. In the principles governing primary rights and duties, and the 
remedies available for wrongs thereto. 

2. In the distinctions between rules of Law and Equity. 
2 Cal. 463; 75 Cal. 519; 4 Cal. 7. 

3. In the nature, origin or purpose of actions. 

4. In the use of common counts, and use of names of common law 
and equity actions, in practice, though not retained by express 
terms. 

5. In the facts required to state a cause of action. 

(a) Substantially same facts must be alleged to state a cause as 
under old system, except many fictions and useless pro- 
cedure and pleadings have been abolished. 159 Cal. 182; 
146 Cal. 669; 143 Cal. 50; 130 Cal. 264; 136 Cal. 31 ; 88 Cal. 
443; 117 Cal. 305; 49 N.W. 1063 (S. D.) ; 1 Cyc. 735; 79 
. N.W. 238 (Wis.) ; Pom. Rem. 8-49; 1 C.J. 1003. 



18. In aid of this change, and to prevent confusion from "omnibus" claims 
in one action, the general rule is established, that every action must be 
prosecuted upon some definite theory, and recovery can be had, if at 
all, only on the theory or theories alleged. (107 Cal. 254) This means: 

1. Some principle of law fixing the right and prescribing the duty, or 

2. Some act or series of acts committed in violation of that right or 
duty, or 

3. Some principle of law or act of party giving rise to some special 
kind of relief. 143 Cal. 83. 

4. This rule does not prevent recovering diflferent reliefs available 
on one theory under proper allegations. 143 Cal. 90; 166 Cal. 438 
473; 134 Cal. 138; 143 Cal. 50; 129 Cal. 68; 79 N.W. 238 (Wis.) 
117 Pac. 683; Pom. Rem. 447-455, p. 656 and note; 167 Cal. 719 
21 Cal. App. 297; Notes 50 L.N.S. 3; 21 Enc. PI. and Prac. 649 
Sec. 131 post. 



19. Many actions for breach or violation of a right or duty may be prose- 
cuted upon various different theories which may be consistent or in- 
consistent : — 



First: These theories are inconsistent when 

1. They relate to different rights and duties arising from different 
principles of law. 

(a) As contract or tort; contract valid or invalid; in property 
or personal status, etc. 143 Cal. 88. 

2. When they arise from acts producing different violations or 
breaches of the right or duty. 

(a) As withholding ])ro])erty or converting it; Repudiating 
contract or improperly performing it, etc. 164 Cal. 620. 

3. When contradictory positions are assumed to obtain different 
kinds of relief. 101 Cal. Z7 . 

(a) As recovering possession, or value of property taken ; 
compel performance or terminating contracts, etc. 
Second: If none of these elements or rules are involved, the theories 
are consistent. 

1. Legal and equitable remedies or reliefs are consistent. 

(a) Except usually the equitable cannot be pursued when the 
legal are adequate. 62 Cal. 155; Sec. 528 post; 11 Cal. 
App. 343 ; 6 Cal. App. 455. 

2. Actions and special proceedings are seldom available as simi- 
lar remedies. 162 Cal. 54; 123 Cal. 587. 

(a) Where a statute creates a new right and provides the rem- 
edy, that remedy is exclusive and it only can be fol- 
lowed ; — 

Except when already a common law right, — remedy is 
cumulative. 

(b) ^^'here a new right is created by statute, providing no 
special remedv, any existing and available remedy mav be 
pursued. C.C.P. 23, 1063-1064 ; C.C. 1428 ; 160 Cal. 90;' 150 
Cal. 667; 16 Cal. 515; 71> Cal. 541 ; 1 Cvc. 706; 1 CJ. 944, 
988; Sec. 531 post. 

3. Different theories on same contract are consistent. 

(a) As whether express or implied, etc. 105 Cal. 429 ; 125 
Cal. 234; 166 Cal. 160; Sees. 520-532 post. 



20. When the theories are thus consistent they are said to be cumulative: — 

1. One may be pursued, and if it fails, then the other may be re- 
sorted to. 

(a) Subject to the rules of res judicata by judgment entered. 
6 Cal. App. 455. 

2. All such theories may be plead in same action. 

(a) In which different appropriate reliefs mav be obtained. 

20 Enc. PI. and Prac. 270; 7 Enc. PI. and Prac. 362; Sec. 
131 post. 



21. When the theories are thus inconsistent, only one is available, and 
party must elect which one to pursue. 

By "Election of Remedies" under the Code is meant, that where a 
party has available two or more inconsistent remedies or theories, he 
must elect which one he will pursue and having chosen one, he is 
barred from pursuing the other. 123 Cal. 587. 

1. Two or more definite remedies or theories must be available. 

2. Such remedies or theories must be inconsistent, either 

1. In rights or facts, or (164 Cal. 620) 

10 



2. In principles of law, or 

3. In relief obtainable. 

Bringing action upon one theory is an election, subject to certain 
exceptions. 22 L.N.S. 1153; 8 L.N.S. 144. 

Party may be recjuired to elect upon motion of adverse partv. 
121 Cal. 115; 143 Cal. 88; 101 Cal. Z7 ; 161 Cal. 42; Pom. Rem. 
458-464, 48; 7 Enc. Pi. and Prac. 361 ; Sees. 517-519, 131 post. 



22. Pleadings are the formal allegations by the parties of their respective 
claims and defenses for the judgment of the court, and are 

1. Complaints and answers — raising issues of fact. (Lectures 11, 
12, 16 and 17.) 

2. Demurrer and motions — raising issues of law. (Lecture 15.) 

3. (3ther motions as pleadings — presenting claims for determination. 

(a) As motions for change venue, set aside default, new trial, 
etc. C.C.P. 420-422. (Lectures 5, 23, 35.) 

4. Become a pleading onlv when filed — serving alone not sufficient. 
136 Cal. 363 ; C.C.P. 465. 



23. A motion is an application to a Court or Judge thereof for an order in 
a pending judicial remedy. It is made orally, either 

1. Ex parte — without notice when notice not recpiired. 

2. On notice, when required by law or rules of Court. 
C.C.P. 1003, 1004; 80 Cal. 472. 



24. Notice of motion, when required, must be in writing and must contain 

1. Title of Court, parties and c?use of action in which motion to be 
made ; 

2. Directed to opposite party and his attorney naming them ; 

3. State what motion will be made, court to whom made, time (date 
and hour) and place; 

4. Specify the grounds upon which it will be made ; 18 Cal. App. 270. 

(a) Xo other ground than so specified will be considered; 

5. Specify the evidence which will be used in support of motion, as 

(a) Affidavits served with the notice, — 

(b) Files and records of action in which motion is to l)e made, — 

(c) Oral or other evidence to be presented, — 

6. Must be signed by attornev of moving partv, or in person, if no 
attorney, and dated. C.C.P. 1010; 151 Cal. 159; 164 Cal. ':^ll\ 14 
Enc. PI. and Prac. 70; 28 Cyc. 3. 



25. Such notice must be served as hereafter explained (Lecture 13, Sec. 
160) on attorney of opposing party, or personally, if no attorney. 

1. Five days before hearing if living in same County, — 

2. Otherw'ise ten days before hearing. 

3. If served by mail, such periods must be increased one day for 
each 25 miles (not exceeding 30 days) between place of deposit 
and place of service. C.C.P. 1005. 

Attendance at hearing: waives defects. 90 Cal. 215. 



26. "Practice'' is the taking and conducting all steps and procedure in any 
judicial remedy. 83 Cal. 403 ; 92 Cal. 248 ; 94 Cal. 43. 

11 



27. A civil action is commenced l)y filing a complaint with the Clerk of 
Court, or if no clerk, with jiulge of Court; such filing" consists in — 

1. Deposit with designated officer, at his office during business hours, 
])aying legal fee. 

2. His failure to mark the filing, does not defeat. 153 Cal. 796; 
6 Cal. App. 174. 

3. Failure to pay legal fee prevents the filing; 

(a) Except when officer waives fee and becomes personally liable 
therefor. 6 Cal. App. 174; C.C.P. 350, 405, 406; 125 Cal. 48; 
121 Cal. 254; 114 Cal. 569; 57 Cal. 501 ; 79 Cal. 254; 88 N.W. 
748; 15 Am. St. Rep. 294; 148 Cal. 773; 24 Cal. App. 760; 
20 Cal. App. 564, 567 ; 8 Stand. Proc. 977. 



28. Special proceedings are made to conform to the procedure, form and 
rules governing actions, except as modified in statutes creating them. 
They are commenced by filing initial pleading similar to complaint, 
but variously styled, a petition, affidavit, or application. C.C.P. 1063, 
1064, 1109, 1177, 1198, 1256, 1713; 109 Cal. 250. 



12 



LECTURE 3. 
Civil Action — When may be commenced — Limitations. 

30. All civil actions and special proceedings, in order to be successfully 
maintained, must be commenced — 

1. After cause of action accrues. 14 L.X.S. 776; 7 L.R.A. 658: 164 
Cal. 472. 

2. ^^'ithin prescribed period of limitation. 

C.C. 312, 363; 147 Cal. 554; 72 Cal. 363; 95 Cal. 317; 135 Cal. 100. 



3L General principles relating to statutes of limitations: — 

1. Do not affect state except bv expressed provision — nor United 
States. C.C.P. 315, 345 ; 117 Cal. 699 ; 24 Cal. 257 ; 47 Cal. 570. 

2. Are meritorious and favored in law, but strictly construed and 
never retroactive. 157 Cal. 192; 127 Cal. 107; 35 Cal. 634; 122 
Cal. 644; 162 Cal. 178. 

3. Personal privilege, which may be waived, except as to grantees 
or successors in interest, who may plead. 121 Cal. 194; 119 Cal. 

~ 528; 140 Cal. 29: 43 Cal. 185 ; 85 Cal. 507; 3 Cal. App. 54; 164 Cal. 
623; 148 Cal. 287; 168 Cal. 323. 

4. Limitations may be repealed or changed at any time, provided a 
reasonable time be allowed. 165 Cal. 448; 151 Cal. 488; 89 Cal. 
387; 112 Cal. 85; 151 Cal. 432; 6 Cal. 430. 

5. Nature of right and not form of action determines what limitation 
is applicable. 153 Cal. 243; 131 Cal. 402; 20 Cal. App. 1. 



32, Action commenced before cause accrues is premature and not maintain- 
able, though it mav mature after it is commenced. 44 Cal. 264; 109 
Cal. 125; 143 Cal. 221 ; 122 Cal. 244; 132 Cal. 458; 65 Cal. 243; 57 Cal. 
12; 37 Cal. 385; 60 Cal. 439. 



33. Exceptions to rule limitations begin at accrual of cause of action : — 

1. When disabilities exist — period begins when they cease. C.C.P. 
352, 357, 358, 328, 1574; 61 Cal. 597; 110 Cal. 292; 100 Cal. 505; 

. 167 Cal. 786. 

2. If defendant is absent from State — begins when he returns. C.C.P. 
351 ; 101 Cal. 154 ; 164 Cal. 623 ; 21 Cal. App. 136 ; 168 Cal. 323. 

3. As to citizen of country at war with U. S. — begins when war 
ceases. C.C.P. 354; 19 Am. and Eng. Enc. Law 217. 

4. Action stayed bv injunction or statute — begins when same is re- 
moved. C.C.P. 356; 54 Cal. 233; 141 Cal. 99; 63 Cal. 122. 

5. Cause barred by laws of one State, barred elsewhere except in 
favor of citizen of State of forum. C.C.P. 361; 157 Cal. 192; 71 
Cal. 264; 95 Cal. 184; 164 Cal. 472; 152 Cal. 637. 

6. Death does not prevent beginning of period — even if no person 
in being to sue. C.C.P. 353; 166 Cal. 24; 156 Cal. 55. 

7. In fraud — begins on discovery. 165 Cal. 596; C.C.P. 338. 

8. As to stockholders — begins at creation of liabilitv. C.C.P. 359; 
168 Cal. 642. 

9. Divorce for desertion, neglect or intemperance — must continue one 
year before action brought. C.C. 107. 

10. Though party has right to bring action on a default before ma- 
turity — limitations begin on maturitv of debt, not when he has 
option to sue. 153 Cal. 197 ; 127 Cal. 107. 

13 



11. Upon obligation of Title Search, or insurance — limitation begins 
on discovery loss or damage. C.C.P. Sec. 33[). 



34. In the following instances there is no period of limitation, but the cause 
accrues as stated : 

1. Money or property deposited with bank — accrues at time return 
agreed or upon demand except when insol\-ent, then at beginning 
process of liquidation. C.C.P. 348 ; C.C. 1822 ; 65 Cal. 71 ; 64 Cal. 121 ; 
93 Cal. 283. 

2. Against directors for capital paid out or debt contracted — accrues 
at time act is committed. C.C. 309, but see C.C.P. 359; 153 Cal. 
664. 

3. For public property devoted to public use — at time property is 
taken or invaded. 'l52 Cal. 731; 167 Cal. 643; 162 Cal. 87; 154 
Cal. 119. 

4. Against a public nuisance affecting public right — when committed. 
C.C. 3490; 103 Cal. 236. 



35. In actions relating to the .recovery of real property, the cause accrues 
and the periods of limitation are as follows : 

1. By State or its grantee to recover — in 10 years after deprived of 
possession. C.C.P. 315, 316; 166 Cal. 612, 614; 66 Cal. 563; 167 
Cal. 643, 651. 

2. By State or grantee to recover when patent void — in 5 years after 
patent declared void. C.C.P. 317. 

3. By private person to recover — in 5 vears after deprived of pos- 
session. C.C.P. 318-327; for Mesne Profits, same C.C.P. 336; 147 
Cal. 554; 162 Cal. 630 ; 20 Cal. App. 1. 

4. For trespass upon — in 3 years after trespass committed, or dis- 
covery in case of fraudulent concealment. C.C.P. 338; 161 Cal. 
689; 117 Cal. 305; 150 Cal. 624; 152 Cal. 279. 

5. To recover when sold by Executor, etc. — in 3 years after settle- 
ment of final account. C.C.P. 1573. 

6. To redeem from lien or sale — in 5 years from adverse possession 
in former, and 1 year after sale. C.C.P. 346, 702. 

7. By husband to recover community — in 1 year from recording 
wife's deed. C.C. 164. 

8. Bv creditor, for fraud in conveying — in 5 years from date of judg- 
ment or sale. C.C.P. 318 ; 166 Cal.'"546. 



36. In actions not relating to real property the cause accrues, and the 
periods of limitation are as follows : 

1. Accounts, open book — in 4 years after each item. C.C.P. 337 ; 124 
Cal. 409; 35 Cal. 122; 17 Cal. 594; 125 Cal. 407. 

2. Accounts, mutual — in 4 years after last item on either side. C.C.P. 
337, 344; 74 Cal. 526; 109 Cal. 170; 4 Cal. App. 26. 

3. Accounts, stated — in 4 years from date of last item. C.C.P. 337, 
339 ; 75 Cal. 192 ; 98 Cal. 293. 

4. Annulment of marriage — different periods for each ground after 
marriage. C.C. 83. 

(a) Under age — by party in 4 years after reach lawful age, or by 
other person, before party reaches lawful age. 

(b) Former spouse living — by either party during life of other. 

14 



(c) Unsound mind — l)y party or other person any time before 
death of other. 

(d) Consent tlirough fraud — by party in 4 years after discovery 
fraud. 

(e) Consent through force — by party in 4 years after marriage. 

(f) Physical incapacity — by party in 4 years after marriage. 

5. Contracts, written — in 4 vears after maturity. C.C.P. Z2)7 ; 163 Cal. 
200 ; 3 Cal. App. 109 ; 156 Cal. 48 ; 164 Cal. 623. 

6. Contracts of title search or insurance — in 2 years after discovery 
loss or damage. C.C.P. 339. 

7. Contracts, oral or implied — in 2 years after maturity, or after dis- 
coverv in case of fraudulent concealment. C.C.P. 339; 166 Cal. 
7o7 : 122 Cal. 106 ; 149 Cal. 32 ; 4 Cal. App. 249. 

8. Contracts mature, cause of action accrues, and limitation begins, 
as follows : 

(a) If time fixed— at date so fixed. 166 Cal. 19; 99 Cal. 509; 
153 Cal. 197. 

(b) No time fixed or money payable on demand — on delivery or 
making of contract. 24 Cal. App. 503. 

(c) If a covenant is to be performed on demand — date when de- 
mand should be made. 19 Cal. App. 231 ; 143 Cal. 224; 164 
Cal. 384; 22 Cal. App. 8. 

(d) On conditional event — then on happening event or perform- 
ance of condition. 140 Cal. 88; 164 Cal 274, 472; 167 Cal. 
35; 160 Cal. 501. 

(e) If payable in installments — on date each is due. 

(f) On undertakings — when principal's liability becomes fixed. 
143 Cal. 221. 

(g) On indemnity — when liability is incurred. 166 Cal. 420. 

(h) Guaranty of mortgage note — at maturity of note. 148 Cal. 7. 
(i) Covenants — on breach. 165 Cal. 386. 

9. Countv claims against — in 6 months after claim is presented. 
C.C.P.' 342; 122 Cal. 644. 

10. Divorce — in dift'erent periods for each ground. C.C. 124-127: 21 
Cal. App. 181. 

(a) Adultery — in 2 years after commission or discovery of act ; 

(b) Conviction felony — in 2 years after pardon or end sentence; 

(c) All other grounds — within reasonable time after cause ac- 
crues. 

11. Eciuitable actions — in 4 years after maturitv or in reasonable time. 
C.C.P. 343; 167 Cal. 553: 159 Cal. 605; 168 Cal. 651. 
(a) Rules of Laches, governing. 164 Cal. 591 ; 162 Cal. 141 ; 158 
Cal. 474; 156 Cal.^643; 18 Cal. App. 107. 

12. Estates of deceased persons — 

(a) On contract claims — in three months after notice of rejec- 
tion, or two months after due. C.C.P. 1498 : 99 Cal. 503 ; '119 
Cal. 65. 

(b) To contest will — in 1 vear after admitted to probate. C.C.P. 
1327, 1333. 

(c) Contract to make a will — accrues on death of promisor. 167 
Cal. 3?. 

13. Fraud or mistake — in 3 vears after discovery. C.C.P. 338, 1573; 
165 Cal. 596; 164 Cal. 748; 167 Cal. 553; 163 Cal. 648; 21 Cal. 
App. 444; 16 Cal. A.pp. 578; 154 Cal. 456; 149 Cal. 556; 151 Cal. 
102; 168 Cal. 73. 

14. Judgments — 

(a) Domestic — in 5 years after becomes final. 21 Cal. App. 150. 

15 



(b) Foreign — in 5 years or period prescribed by laws of foreign 
country where judgment was obtained. 162 Cal. 178; C.C.P. 
336, 343, 361. 

15. Liens — within period fixed to sue on debt secured. C.C. 2911. 

(a) Mechanic liens — in 90 days after lien filed. C.C.P. 1190. 

(b) Street assessment — in period fixed by statute creating. 166 
Cal. 717; 164 Cal. 645; 167 Cal. 774; 19 Cal. App. 511; 
149 Cal. 599. 

16. Municipalities, claims against — in period fixed bv charters after 
claim rejected. C.C.P. 340; 89 Cal. 398; 122 Caf. 106. 

17 Negligence, except personal injuries — in 2 years after act com- 
mitted. C.C.P. 339; 95 Cal. 317; 135 Cal. 100. 

18. Public officers — 

(a) Sheriff, Coroner or Constable for official acts — in 2 years 

after liability incurred. C.C.P. 339. 
(h) Sheriff or other ofBcer for escape — in 1 year from date of 

escape. C.C.P. 340. See also C.C.P. 345 ; 73 Cal. 574. 

19. Personal property — 

(a) For taking, detaininor or injury — in 3 years thereafter. C.C.P. 

338. r ' 

(b) Seized by officer — in 6 months from seizure. C.C.P. 341 ; 
153 Cal. 234. 

20. Personal injuries or death^n 1 year from act committed. C.C.P. 
340; 166 Cal. 33. 

21. Stockholders liability — in 3 years after liability created by corpo- 
ration. C.C.P. 359; 166 Cal' 423; 167 Cal. 238; 16 Cal. App. 267; 
6 Cal. App. 469; 168 Cal. 642. 

(a) To recoyer stock sold on assessment — in 6 months after sale. 
C.C.P. 341; C.C. 347. 

22. Statutory liability — 

(a) Penalty or forfeitures — in 1 year after act creating it. 

(b) Other statutory liability — in 3 years after act creating it. 

(c) Tax paid under protest — in 6 months after payment. C.C.P. 
340, 338; 71 Cal. 72. 

23. Other torts not aboye mentioned. 

(a) Libel, Slander, Battery, False Imprisonment, Seduction — in 
1 year after act. C.C.P. 340. 

(b) Malicious Prosecution — in 2 years after act. C.C.P. 339. 

(c) Other liability not founded on contract — in 2 years after it 
arises. C.C.P. Sec. 339; 122 Cal. 507; 140 Cal. 385; 129 
Cal. 8. 

24. Trusts, express — in 4 years after repudiation by Trustee. C.C.P. 
343; 166 Cal. 20; 163 Cal. 681, 717; 158 Cal. 474; 19 Cal. App. 706; 
151 Cal. 102. 

(a) To inyalidate act Trustees dissolyed corporation — in 2 years 
after committing act. C.C.P. Sec. 341. 

25. Trusts, constructiye or implied — in 4 years after inception. C.C.P. 
343 ; 72 Cal. 363 ; 163 Cal. 717 ; 20 Cal. App. 1 . 

26. When Trustee is barred against third person, beneficiary is barred 
also. 100 Cal. 505. 

27. Between tenants in common — for contribution, and for possession, 
same as between other parties. 168 Cal. 369. 

28. Application for certiorari— within time to appeal from judgment. 
66 Cal. 136; 97 Cal. 348. 

16 



37. How ninnini;" of limitation is stopped, extended or shortened: — 

1. By filing complaint, cross-complaint, complaint in intervention, 
stops on causes of action therein ])lead at (late of filing. 127 Cal. 
112; 11 Cal. App. 494. 

(a) Amendments to same cause in such complaints relate back 
to date filino- original. 164 Cal. 188 ; 1 1 Cal. App. 494. 

(b) Amendments and supplemental pleadings alleging new 
causes of action or new parties — stop on filing amendment or 
supplemental pleading — except as to assignees or legal rep- 
resentatives substituted. 166 Cal. 121. 478; 121 Cal. 194; 
58 Cal. 147; 99 Cal. 509; 61 Cal. 149; 53 Cal. 102; 50 Cal. 
525; 135 Cal. 100. 

(c) On counter-claims — stop on filing complaint in action. 120 
Cal. 28; 132 Cal. 154. 

2. Death of creditor, extends period 6 months thereafter, if cause 
survives. C.C.P. 353 ; 119 Cal. 65. 

3. Death of debtor, extends period 1 year after Letters issued if 
cause survives. C.C.P. 353 ; 116 Cal. 355 ; 153 Cal. 578. 

(a) Actions for personal torts, as battery, libel, slander, etc., do 
not survive. Sec. 97 (4) post. 

(b) Actions relating to contracts or propertv do survive. C.C. 
954; C.C.P. 1582-1584. 

4. Departure of debtor from State, stops period until he returns. 
C.C.P. 351; 162 Cal. 178; 164 Cal. 623; 152 Cal. 162; 168 Cal. 323. 

5. War, injunctions and statutory prohibitions stop period. C.C.P. 
354-356 ; 54 Cal. 594. 

6. Written acknowledgment stops period and renews debt. C.C.P. 
360; 166 Cal. 329; f40 Cal. 92; 156 Cal. 51; 155 Cal. 599; 22 Cal. 
App. 535; 11 Cal. App. 523; 5 Cal. App. 562; 9 Cal. App. 111. 

7. Agreements to extend, or waive, or shorten, changes period 130 
Cal. 245; 127 Cal. 669; 163 Cal. 530; 155 Cal. 137; 17 Cal. App. 
565 ; 3 Cal. App. 294. 



38. The Complaint, cross-complaint, complaint in intervention, and coun- 
ter-claim must allege facts showing — 

1. That cause of action accrued before its filing. 164 Cal. 472; Sec. 
• 128 (3) post. 

2. That cause of action is not barred by limitation. 114 Cal. 38; 165 
Cal. 596; 44 Cal. 264; 140 Cal. 92; 167 Cal. 55; 21 Cal. App. 444; 
9 Cal. App. 228. 



39. The periods of limitations applv alike to relief sought in answer as 
defense. 167 Cal. 553 ; 2 Cal. App. 6. 



40. The time of said periods of limitations is computed by excluding the 
day or date on which the cause accrues, and including the last day of 
the period after the date cause accrued ; and if the day, on which cause 
accrues, is a holiday, the cause really accrues on first legal day follow- 
ing, which is also excluded ; or if last day of period is a legal holiday, 
it is also excluded and period does not expire until the first legal day 
thereafter. C.C.P. Sees. 12, 13 ; 24 Cal. App. 503 ; 110 Cal. 547. 



17 



LECTURE 4. 

Complaint — Title of Action and Courts. 

42. Complaint is first pleading- filed in an action setting" up plaintiff's claims. 
First: In Superior Court must be in writing" and must contain 

1. Title of action, name of Court and County, names of parties. 

2. Statement of facts constituting cause of action. 

3. Relief demanded — amount claimed. 
Second: In Justice Court must be in writing, either 

1. Containing" same matter as in Superior Court, or 

2. A copy of the account, note, bill, bond, or instrument upon 
which action is based. C.C.P. 425, 426, 851, 853; 122 Cal. 468: 
68 Cal. 410. 



43. The "Title of Action" is the name given to an action to indicate its 
character and purpose. C.C.P. 1046. 



44. A Court is a tribunal presided over by one or more Judges to exercise 
such powers, at such times, and places, as prescribed by law. All Courts 
of California are "of record" except Justice and Police. C.C.P. 34, 65, 
67, 67a; 105 Cal. 412; 99 Cal. 512; 153 Cal. 167; 20 Cal. App. 160. 
Though in several departments, and having several ludges — but one 
Court. 110 Cal. 60, 644; 11 Cyc. 652. 



45. The Courts created in California for trial of actions, and appeals therein 
are 

1. Appellate — Supreme, District Appeals, Superior Courts. 

2. Trial — Superior, Justice and Police Courts. C.C.P. 33, 34. 

46. All actions and most special proceedings must be commenced in "Trial 
Courts" and to determine which Court, compare facts and relief sought 
and existing when action is commenced, with jurisdiction of Court 
fixed by law. 139 Pac. 1060; 167 Cal. 406. 



47. By "Jurisdiction of Court" is meant the power to hear and determine 
the claims and defenses of parties before it and dispose of the prop- 
erty seized therein, and is 

1. Over the cause. 

2. Over the person of parties. 

3. Over subject matter or thing involved. C.C.P. 1917: 11 Cal. App. 
4; 119 Cal. 148; 8 Cal. App. 622; U Cyc. 659. 

4. Some acts are mandatory, some discretionary. 87 Cal. 413. 

5. Courts discretion defined. 58 Cal. 189; 144 Cal. 426; 6 L. Ed. 
(U.S.) 234. 

48. Generally the powers of a Court within its jurisdiction must be exer- 
cised by Judge thereof while Court is in session. But certain acts may 
be done 1)y a Judge when not in session as a Court, when he is said to 
act "at Chambers ;" these are 

1. Hear all e.x parte motions, and grant orders and writs thereon 
when notice not required. 

18 



2. Perform certain acts in rro1)ate proceedings. 

3. When findings and jndgment are ordered in Court, may sign at 
Chaml)ers. 

4. Tliese acts mav 1)e done anvvvhere in State. 158 Cal. 66; 126 Cal. 
582; C.C.P. 166, 1004; 99 Cal. 513; 100 Cal. 601; 11 Cyc. 682; 
23 Cyc. 543. 

49. The jurisdiction of Supreme Court over causes is as follows: 

1. Appellate from Superior Court. 

(a) All cases in Equity. 

(b) All actions at law involving title or possession real prop- 
erty or validity tax, assessment, fine, etc., and all in which 
demand exclusive of interest or value of j)roperty, aiuounts 
to $2000. 

(c) All matters of Probate. 

2. Original, to issue writs review, mandamus, ])rohibition, habeas 
corpus, quo warranto. 

3. Review decisions of District Appellate Court on petition for trans- 
fer. Con. Art. VI, Sec. 4; Sec. 473 post. 



50. The jurisdiction of District Appellate Courts over causes is as follows : 

1. Appellate from Superior Courts — 

(a) All actions at law in which demand is $300 to $2000, exclu- 
sive interest or value property. 17 Cal. App. 367. 

(b) All actions forcible and unlawful detainer, except those aris- 
ing in Justice Court. 

(c) Proceedings insolvency and al)ate nuisance. 

(d) Eminent Domain and all other special proceedings not given 
to Supreme Court. 

2. Original, to issue writs review, ^landamus. Prohibition and Habeas 
Corpus, Quo warranto. 167 Cal. 727. 

3. All cases transferred to it from Supreme Court. Con. Art. VI, 
Sec. 4; 22 Cal. App. 806; Sec. 473 post. 



51. The jurisdiction of Superior Courts over causes is as follows: 

First : Original for trial of actions and proceedings as follows : 

1. All actions in Equitv. 139 Pac. 1060; 151 Cal. 313; 117 Cal. 
381 ; 24 Cal. 499. 

2. All civil actions subject of which not capable of pecuniary esti- 
mation. 

3. All actions at law involving title or possession of real property, 
or legalitv of tax, impost, assessment, toll or municipal fine. 
17 Cal. 67; 31 Cal. 339; 38 Cal. 683; 126 Cal. 573; 31 Cal. 241; 
92 Cal. 50; 71 Cal. 88. 

4. All other actions at law in wdiich demand aiuounts to $300, ex- 
clusive of interest. 122 Cal. 117; 132 Cal. 601, 700; 86 Cal. 459; 
154 Cal. 456; 82 Cal. 650. 

5. All actions of forcible or unlawful entr\' and detainer. 137 Cal. 
604; 130 Cal. 98. 

6. Proceedings of insolvency. 136 Cal. 280. 

7. Actions to prevent or abate a nuisance. 144 Cal. 542 ; 2 Cal. 
App. 261. 

8. All matters of Probate. 119 Cal. 663; 120 Cal. 148; 129 Cal. 
208; 135 Cal. 323 ; 136 Cal. 590; 168 Cal. 253. 

19 



9. Actions for divorce or annulment of marriage. 

10. All special proceedings not otherwise provided for. 

11. Naturalization and issue papers therefor. 5 Cal. 301. 

12. Issue writs mandamus, review, prohibition, quo warranto, 
IIal)eas Corpus. 

Second : Appellate, of all actions or proceedings in Justice or Police 
Courts. Con. Art. VI. Sec. 5; C.C.P. 76, ll \ 101 Cal. 160; 132 CaL 
700; 167 Cal. 735. 



52. Jurisdiction of Justice Court over causes is as follows: 

1. Actions on contract when amount claimed does not amount to 
$300, without interest. 127 Cal. 559; 91 Cal. 548. 

2. Actions for injury to person, taking, detaining or injuring per- 
sonal property and injury to real property not involving title, 
when damages claimed do not amount to $300. 38 Cal. 683 ; 39 
Cal. 319; 53 Cal. 23; 135 Cal. 68; 131 Cal. 215; 19 Cal. App. 79; 
70 Cal. 564. 

3. Recover possession personal property, when value does not amount 
to $300. 

4. For fine, penalty, or forfeiture not involving legality, not amount- 
ing to $300. 69 Cal. 556; 135 Cal. 68; 80 Cal. 40; 106 Cal. 199. 

5. On bonds and undertakings if sum claimed does not amount to 
$300. 

6. Enter judgment on confession not amounting to $300. 

7. Concurrent with Superior Court for forcible entry and detainer 
rent not over $25 per month and damages not over $200. 130 
Cal. 96; 90 Cal. 501. 

8. Foreclosure liens on personal property where lien and value prop- 
erty not $300. C.C.P. 112-114; 135 Cal. 65; 63 Cal. 464. 



53. Jurisdiction of Police Courts over causes is as follows : 

1. All proceedings for violation of any ordinance of city. 

2, All actions for collection of city licenses. C.C.P. 121, 929; Pol. 
Code 4424. 



54. Jurisdiction of a Court "over the cause" is determined by the allega- 
tions and demand in the complaint, showing nature of action, and 
amount and kind of relief demanded. 167 Cal. 406; 151 Cal. 313; 6 Cal. 
App. 475; 154 Cal. 456. 

1. Except when demand appears to be feigned and not real. 119 
Cal. 192. 

2. Stipulation or judgment for less amount does not oust jurisdic- 
tion. 120 Cal. 541 ; 19 Cal. App. 85 ; 65 Cal. 387 ; 86 Cal. 459 ; 126 
Cal. 226; 130 Cal. 98; 127 Cal. 330; 110 Cal. 37; 167 Cal. 238, 735; 
24 Cal. App. 586; 17 Cal. App. 367. 



55. This jurisdiction "over the cause" is fixed by law, and cannot be 

changed, given or taken away by consent of parties. 12 Cal. App. 536; 

168 Cal. 727. 

1. Except in Justice Court, amount in excess over jurisdictional 

amount mav be expressly waived in complaint so as to give that 

Court jurisdiction. 60 Cal. 425; 108 Cal. 431; 135 Cal. 65; 141 

Cal. 399 ; 8 Cal. 562. 

20 



56. Jurisdiction of a Court "over the person" and "over thing involved" is 
acquired as hereafter explained. (See Lectures 13 and 14.j 



57. Justice Court is one of limited jurisdiction, its power strictly construed: 
no presumption in favor of its jurisdiction, and party claiming- rights 
under its judgment must show jurisdiction afifirmatively. 63 Cal. 464; 
97 Cal. 523 ; 67 Cal. 395 ; 165 Cal. 423 ; 15 Cal. 296 ; 34 Cal. 321. 



58. The titles of these Courts, as expressed in the pleadings, process and 
other documents, are as follows : 

1. In the Supreme Court of the State of California. 

2. In the District Court of Appeals of the District, State of 

California. 

3. In the Sviperior Court of County, State of California. 

4. In the Justice's Court of Township, County of , 

State of California. 

5. In the Police Court of City, County of , State of Cali- 
fornia. 



21 



LECTURE 5. 
Complaint — Venue of Actions and Proceedings — Change of Venue. 

60. Tlie place where nn action (»r ])rocec(ling in Conrt may l)e conmienced 
or tried is called its venue, and to determine such venue, either as to the 
State, or locality in the State, actions and proceedings are classified as 

1. T^ocal — those which can be commenced or tried oidy in certain 
State, or locality therein. 1 C.J. 931. 

2. Transitory — those which may be commenced or tried anywhere 
jurisdiction can be obtained over defendant. 1 C.J. 933; 83 Cal. 
500; 22 Enc. PI. and Prac. 775; 40 Cyc. 10. 

Venue as between States or Countries. 

61. The following actions or proceedings are "local" and can only be brought 
in the State where the property is located or cause accrues : 

1. To recover possession, or affecting title, or enforce liens upon,, 
real property — only in State where such property is located. 

2. To recover damages to real property — only in State where prop- 
erty is located. 

3. To recover possession or enforce lien upon personal property — in 
State where, property is found. 

4. On right created by Statute, w^hich prescribes a special remedy — 
only in State adopting statute. 69 L.R.A. 673 ; 147 Cal. 467 ;' 26 
L.N.S. 928; 34 L.X.S. 994; 152 Cal. 201 ; 40 Cyc. 30. 



62. Other actions or proceedings are Transitory and may be brought in 
any state or country where jurisdiction may ])e obtained over defend- 
ant, though cause accrued elsewhere : 

1. Actions to recover monev or damages on contract obligations or 
judgment. 163 Cal. 485, 632. 

2. Actions to recover damages for torts to person, or personal prop- 
erty but not real property. 10 Cal. App. 690; 153 Cal. 438. 

3. Actions or proceedings in Equitv which operate in personam. 
90 Cal. 25 ; 123 Cal. 689 ; 66 Cal. 27"; 69 L.R.A. 677 ; 40 Cyc. 35. 

Venue as to locality in State of Forum. 

63. In California the following actions or proceedings in Superior Court 
are local and must be commenced, and subject to change, must be tried, 

1. To recover possession of, ciuiet title to, or enforce liens upon 
real property — in County where property or some part thereof is 
situated, subject to change on anv ground except proper County 
for trial. Con. Art. VL Sec. 5; C.C.P. 392: 150 Cal. 466; 140 Cal. 
132. 

2. For divorce — must be commenced in County of plaintiff's resi- 
dence — trial subject to change on all grounds. C.C. 128; 100 Cal. 
11; 40 Cyc. 39. 

64. The following Special proceedings are local and must be commenced 
in certain places and tried there subject to change on any ground ex- 
cept proper County for trial. 

1. Election contests — in county where held. C.C.P. 1118. 

2. Forcible and unlawful entry and detainer — in count v where prop- 
erty located. C.C.P. 1163. 

22 



3. Mechanics' liens — in countx' where property subject to is located. 
C.C.P. 1187, 1190: Con. Art. XX, Sec. 15. 

4. Dissolution corporation — in County where its principal place 
business located. C.C.P. 1227. 

5. Condemnaticjn — in countv where property or part of it is located. 
C.C.P. 1243. 

6. Escheated estate — in County where property is located. C.C.P. 
1269. 

7. Chang^e of name — in County where party resides. C.C.P. 1276. 

8. Probate — in County deceased's residence, or if non-resident, in 
County where estate is located. C.C.P. 1294. 1295. 1431-1433. 



65. All other actions or proceedings are transitory as to place of commence- 
ment in the State, may be commenced in any County, and tried there 
subject to change — 

1. If not commenced in proper place for trial — may be changed to 
such place. 

2. If commenced in proper place for trial — may be changed on other 
^rounds. C.C.P. 396. 



66. The proper place for trial of such transitory actions and proceedings is : 

1. If defendants non-residents of State, or residence in State un- 
known — in County designated in complaint. C.C.P. 395 ; 7 Cal. 
App. 190 ; 10 Cal. App. 70. 

2. If defendant about to depart from State — in County where either 
party resides or where service of process is had. C.C.P. 395. 

3. Actions against corporations — in County where contract or lia- 
bility is made, arises, is to be performed, or breach occurs. Con. 
Art. XII, Sec. 16; 134 Cal. 588; 102 Cal. 47; 107 Cal. 378; 22 Cal. 
App. 167; 159 Cal. 694; 15 Cal. App. 469; 11 Cal. App. 237. 

4. For recovery of penalty or forfeiture, or against public oFficer — in 
county where cause arose. C.C.P. 393 ; 153 Cal. 418; 154 Cal. 775 ; 
3 Cal. App. 602. 

5. Action against county — in such county, except where another 
county sues, then in any other county ; or action by county or 
citv against citizen or corporation — in some other countA'. C.C.P. 
394; 12 Cal. App. 223. 

6. Action for injury to person or property, or for death from wrong- 
ful act or negligence — in county \yhere injury occurs. C.C.P. 395 ; 
166 Cal. 765^ 

7. Actions for recovery, injury to or partition of real property (ex- 
cept Constitutional actions) — in county where real property, or 
some part thereof, is situated. C.C.P. '392; 155 Cal. 59; 140' Cal. 
132; 9 Cal. App. 318; 22 Cal. App. 493; 150 Cal. 466; 12 Cal. App. 
519; 168 Cal. 700. 

8. All other transitory actions should be tried in county where de- 
fendants or one of them resides. C.C.P. 395 ; 166 Cal. 765 ; 83 Cal. 
491 ; 88 Cal. 572; 16 Cal. App. 560; 150 Cal. 466; 7 Cal. App. 190; 
11 Cal. App. 237. 



67. "Change of Venue" in Superior Court means transferring actions or 
proceedings commenced in one county to another county in same State 
for trial, and general rules governing same are : 

23 



1. If local action or proceeding be commenced in wrong County — 
Court is without jurisdiction — no change made. S7 Cal. 38; 94 
Cal. 393 ; 98 Cal. 487 ; 104 Cal. 288. 

2. Plaintiff cannot bring action or proceeding in wrong County and 
then move for change. 61 Cal. 79. 

3. One application for change exhausts remedy on the ground urged 
■ — new application on other grounds may be made. 163 Cal. 338. 

4. Right to change is determined by nature of action (not relief de- 
manded) and conditions existing at time appearance of party de- 
manding change. 163 Cal. 114; 16 Cal._ App. 564; 168 Cal. 700. 

5. Right to change is waived, unless application is made at the time, 
in the manner and on the proper ground as provided bv Code. 

C.C.P. 396; 97 Cal. 135; 164 Cal. 532; 5 Stand. Proc. 4-45; 40 
Cyc. 116. 

6. There is no such thing as "Change of Venue" of an action from 
the Courts of one State to another State. 



68. The only grounds provided by Code for change in Superior Court are 
as follows : 
1. When county named in complaint not proper county for trial. 

(a) Because of defendant's residence, or 

(b) Because of location of property or where cause arose. 166 
Cal. 765. 

2 When there is reason to believe an impartial trial cannot be had 
therein. 15 Cal. App. 589 ; 23 Cal. 375 ; 46 Cal. 245. 

3. Convenience to witnesses and ends of justice be promoted by 
change. 17 Cal. App. 397 ; 15 Cal. App. 509. 

4. There is no judge of the Court qualified to act — Judge disqualified 
because— 2 Cal. App. 52; 153 Cal. 652. 

(a) Relation to a party. 105 Cal. 557; 7 Cal. App. 95; 91 Cal. 
352. 

(b) A party, or interested in subject matter. 118 Cal. 249; 121 
Cal. 102, 372; 126 Cal. 303; 151 Cal. 357. 

(c) Has been attorney for any party in subject matter. 

(d) Prejudice or bias for or against any party. 151 Cal. 458; 
9 Cal. App. 522; C.C.P. 397, 170-172; 160 Cal. 390; 159 Cal. 
541 ; 17 Cal. App. 660; 123 Cal. 412; 132 Cal. 303; C.C. 1392- 
1393; 136 Cal. 335; 149 Cal. 388; 168 Cal. 18. 



First Ground — Improper County. 

69. The change of venue on first ground — Improper County — is governed 
by these general rules : 

1. If action is not brought in any proper county for trial as above 
defined — defendant may demand change to his residence. 

(a) Burden on plaintiff to show action brought in proper county 
for trial. 22 Cal. App. 167. 

2. If action involves a personal cause and damages to real property — 
defendant may change to his residence, though brought in county 
where real property is located. 88 Cal. 572 ; 100 Cal. 16. 

3. If action is brought in a proper place for trial — cannot be changed 
to defendant's residence unless personal cause is alleged as last 
above stated. 9 Cal. App. 318; 159 Cal. 694; 22 Cal. App. 508; 12 
Cal. App. 515. 

24 



If action is brought in County defendant's residence — he may 
have change to other proper county for trial as specified above. 
150 Cal. 466. 

Where there are several defendants, non-resident can procure 
change only by showing — 

(a) No defendant resides in county where action is brought, or 

(b) No cause of action alleged against co-defendants, or 

(c) Co-defendant joined fraudulently to prevent change. 

(d) If a necessary defendant is resident, change n<jt granted by 
his joining in demand. 163 Cal. 114; 21 Cal. App. 267; 16 
Cal. App. 193. 560; 148 Cal. 58; 151 Cal. 159; 119 Cal. 80; 
14 Cal. App. 700; 11 Cal. App. 122, 224; 133 Cal. 506; 150 
Cal. 667; 6 Cal. App. 431. 

Foreign Corporation cannot have change to place of business in 
this State. 10 Cal. App. 70. 



70, On First Ground — Improper County — defendant must demand and 
apply for change at time of filing first pleading, by his serving on plain- 
tiff and filing following: 

1. Demurrer or answer to complaint. 136 Cal. 362; 145 Cal. 219; 147 
Cal. 541 ; 151 Cal. 399. 

2. Written demand of change to proper county naming it, signed by 
defendant or his attorney. 66 Cal. 235 ; 97 Cal. 135. 

3. Written notice of motion for change stating: 

(a) Title of Court and cause where pending. 

(b) What motion will be made, date, hour, and place motion 
will be made. 

(c) Specifically the grounds on which motion will be made. 

(d) The affidavits, papers, or other evidence on which motion 
will be based. 

(e) Signed by defendant's attorney, and directed to plaintiff and 
his attorney. 151 Cal. 159; 164 Cal. 532. 

4. Affidavit by defendant or some one on his behalf showing : 

(a) Facts as to what county is proper place for trial. 

1. If residence — that defendant was resident of county 
named in demand at time action was commenced. 16 
Cal. App. 103 ; 12 Cal. App. 175. 

2. If location of property, or where cause arose — the facts 
showing same. 

(b) Facts showing merits — that defendant has good defense on 
merits. 

1. This mav be shown by verified answer instead of affi- 
davit. C.C.P. 396; 164 Cal. 532; 163 Cal. 338; 18 Cal. 
App. 114, 287; 16 Cal. App. 103; 9 Cal. App. 18 ; 66 Cal: 
235; 125 Cal. 334; 6 Cal. App. 85; 7 Cal. App. 710; 1 
Stand. Proc. 653. 

(c) Affidavit may be amended. 18 Cal. App. 114. 

5. If application is made with answer, plaintiff may make counter 
motion to retain for convenience to witness ; but not when made 
with demurrer. 158 Cal. 232; 15 Cal. App. 537 ; 61 Cal. 79. 

6. After demand filed. Court has no power to take any action until 
motion is heard and determined. 65 Cal. 321; 105 Cal. 138; 106 
Cal. 56; 107 Cal. 378; 125 Cal. 334. 

25 



Second Ground — Impartial Trial. 

71. Application for change of xeiuic on second ground — impartial trial — 
may be made by either party at any time after answer filed and l^efore 
trial by serving and filing: 

1. Notice of motion as above specified. 

(a) No demand necessary. 

2. Affidavits showing effort at trial and failed, or facts showing such 
a state of aft'airs that a jurv cannot be obtained, or fair and im- 
partial trial cannot be had. 15 Cal. App. 461, 589; 61 Cal. 79. 



Third Ground — Convenience to Witnesses. 

72. Application for change venue on third ground — convenience to wit- 
nesses — -may be made by either party after answer filed and before trial 
by serving and filing — 

1. Notice of motion as above explained. 

(a) No demand necessary. 

2. Affidavit showing names and residence of witness, what each is 
expected to testify, and facts showing materiality of evidence, 
and in what manner change would promote convenience and ends 
of justice. 7 Cal. App. 313. 

3. Change on this ground within discretion of Court. 140 Cal. 132; 
163 Cal. 338; 158 Cal. 232; 17 Cal. App. 397; 15 Cal. App. 509; 2 
Cal. App. 672. 



Fourth Ground — Disqualified Judge. 

73. Application for change venue on fourth ground — disqualified Judge- 
may be made by either party at any time before or during trial, by 
serving and filing — 

1. Notice of motion as above explained. 

(a) No demand necessary. 

2. Affidavit of facts showing disqualification of Judge for any of the 
reasons above explained. 162 Cal. 115 ; 149 Cal. 381 ; 152 Cal. 142; 
9 Cal. App. 522. 

3. Must also appear there is no other Judge of Court qualified to act. 

4. Judge cannot defeat motion by calling in Judge of another Court. 
2 Cal. App. 52; 7 Cal. App. 95; 153 Cal. 652; 158 Cal. 603; 17 Cal. 
App. 660; 168 Cal. 18. 

5. Motion may be made to call in another Judge instead change 
venue. 162 Cal. 115. 



74. In all cases, opposing party may file counter af^davits at time of hear- 
ing or Court may hear oral testimony, except cannot contradict af^davit 
of merits. 16 Cal. App. 103 ; 22 Cal. App. 167. 



75. General Rule, actions in Justice Court must be brought, and subject tO' 
change, tried in township where defendants or some of them reside, 
except 

1. If no Justice Court there — then in any Justice Court in County. 

2. In actions for injury to person or property — in township or city 
where injury committed. 

26 



3. For recovery of personal property, or its value, or damages to it — 
where property is found, or taken. 

4. On contracts — where it is to be ])erfi)rmcd. 22 Cal. App. 167; 
66 Cal. 441. 

5. When defendant voluntarilv a])pears and pleads without sum- 
mons. C.C.P. 832;66Cal. 441. 



76. Grounds and procedure for change of venue in Justice Court : 

1. If action brought in wrong place, cjuestion raised in answer, and 
if sustained, action must be dismissed, not changed ; if not so 
raised, is waived. C.C.P. 890, sub. 4 ; 141 Cal. 267 ; 106 Cal. 589. 

2. If action involves title or possession real property or validity of 
any tax, assessment, or tine, must be transferred to Superior Court 
of the Countv. C.C.P. 838; 163 Cal. 240; 159 Cal. 30; 19 Cal. 
App. 79. 

3. Change of venue may be ol)tained b_\' either party before trial as 
follows : 

(a) When Justice is a material witness for either party, by mak- 
ing motion on notice and affidavits showing that fact. 

(b) When either party makes and files an affidavit, with motion 
on notice that he believes he cannot have a fair and impartial 
trial because of interest, bias, or prejudice of Justice. 22 
Cal. 35; 123 Cal. 412. 

(c) \\4ien jury demanded, and either party makes and files an 
affidavit, with motion on notice, that he cannot have a fair 
and impartial trial because of bias or prejudice of citizens. 

(d) W'hen Justice is disqualified, by motion on notice and affi- 
davit showing facts. 

(e) When Justice is sick or unal^le to act. in same manner. 

4. Change made onlv once on first three grounds specified. C.C.P. 
833, 834; 67 Cal. 105. 



77. Action is transferred to proper place for trial if on first ground ; and 
if on other grounds, transferred to county or township agreed upon, or 
to nearest Court. 

1. Order names county or township to which change is made. C.C.P. 
398, 836; 7 Cal. App. 95. 

2. Clerk of Superior Court, or Justice, transmits all papers to Court 
of that place, latter files upon payment of his fees. 

(a) If on ground not brought in proper county, plaintiff pays 
fees. 

(b) In other cases, moving partv pays fees. C.C.P. 399, 400, 
836. 

3. Court in which action commenced loses jurisdiction to take anv 
further action. C.C.P. 399, 836; 154 Cal. 789. 

4. If change erroneously denied, judgment entered is invalid. 121 
Cal. 113. 



27 



LECTURE 6. 

Parties — Real Party in Interest — Assignees — Principal and Agent. 

80. "f^arties to an action"' are those named in the complaint or subsecjuently 
brouijht in by proper means and should sue or be sued in 

1. Real Christian and surname; or 135 Pac. 121 ; 60 Cal. 107; 29 Cyc. 
264 ; 2 L.N.vS. 1089 ; 14 L.R.A. 690. 

2. Name in Avhich title to property or rij^ht stands. 84 Cal. 242; 154 
Cal. 86. 

3. Person doing business in fictitious name cannot sue on contract 
or transaction in that name until he files a certificate thereof; 
should allege filing certificate, when complaint shows name ficti- 
tious—otherwise d^efense. C.C. 2466, 1163 ; C.C.P. 426; Pom. Rem. 
50-61, p. 680; 15 Enc. PI. & Prac. 463-9; 67 Cal. 635; 116 Cal. 448; 
120 Cal. 45; V Cal. 346, sec. 734 post; 30 Cyc. 21-44; 101 Cal. 89. 

4. Who are strangers to the action. 144 Cal. 501. 



81. Parties must be adverse, and capacity to sue or be sued alleged in com- 
plaint in following cases: 31 Cal. 11 ; 99 Cal. 268 — 

1. AMien under any disability. 

2. When an artificial person. 

3. AA'hen acting in official capacity or special status. 15 Enc. PI. & 
Prac. 471. 

4. Same person cannot be both plaintiff and defendant. 163 Cal. 14; 
94 Cal. 576; 1 C.J. 983. 



82. The proper title of parties to be used in pleading under various condi- 
tions stated. 

1. In complaint : , Plaintiff vs , Defend- 
ant. C.C.P. 308; 31 Cal. 11. 

2. On intervention. Same as in complaint and add : , 

Intervener. 

3. In cross-complaint same as in complaint and add : , 

cross-complainant. 

4. On appeal. Same as in trial court but add — Appellant — Respon- 
dent. C.C.P. 938. 



83. General rule that all actions must be prosecuted in name of "Real party 
in interest." 164 Cal. 355 ; 64 L.R.A. 581 ; 61 Cal. 611 ; 68 Cal. 368; 69 
Cal. 145 ; 104 Cal. 344. 

1. ]\Iust have legal entity or capacit}^ to sue. 30 Cyc. 21-29. 

2. Holder of legal title, or real owner of right involved. 30 Cyc. 30- 
44 ; 69 Cal. 145 ; 74 Cal. 435 ; 157 Cal. 447. 

3. Rule satisfied where it appears, both 

(a) That judc^ment for or against party suing would protect 
defendant^' from further suit, and 164 Cal. 291 ; 158 Cal. 226; 
106 Cal. 651 ; 132 Cal. 630. 

(b) That defendant can make all defenses against party suing. 

4. Exception to rule, following persons may sue alone or with real 
party. 

(a) Executors or administrators. 

(b) Trustee of express trust, — a person in whose name contract 
is made for another's benefit. 166 Cal. 563. 

28 



(c) A person expressly authorized bv statute. C.C.P. 367, 369; 
Pom. Rem. 62-81. 99-110; 15 Enc. I'l. cK: Prac. 707-722; 30 
Cyc. 44-98; 1 C.J. 982. 



84. Actions must be ])r()seculc<l ai^ainst ])arty really liable. 

1. Defendant must have le^al entity which court can recognize. 

2. Must ha\e intrini^ed plaintiffs right alleged. 

(a) As the person directly committing the act, or 

(b) Assumed the obligation or liability. 

(c) Instigating or aiding the wrong done. 

(d) Respondeat Superior— 96 Cal. 14; 102 Cal. 220, 245: 142 
Cal. 681. 

3. Must be amenable to process of Court. 30 Cvc. 98-104; 14 Cal. 
App. 700; 1 C.J. 983. 



85. An "assignee" is the person to whom a right has been transferred and 
the following are the rules as to assignment of rights : 
First: Tlie following are assignable: C.C. 954. 982, 993, 1039-1047; 
109 Cal. 693. 

1. Right to money, obligations, and all tangible property. 

2. Claims for torts or wrongs to property. 32 Cal. 590. 

3. Claims based on fraud, in connection wnth property right 
assigned. 

Second : Following not assignable : 

1. Mere right to claim of fraud, apart from property. 94 
Cal. 146; 109 Cal. 665 ; 124 Cal. 528. 

2. Mere possibility or expectancy as heir. C.C. 1045 ; 163 
Cal. 493 ; 141 Cal. 370. 

3. A vendor's lien for balance of purchase price. 89 Cal. 89 ; 
13 L.R.A. 188. 

4. Public officers salary before it becomes due. 66 Cal 71 ; 
8 Cal. App. 662; 5 L.N.S. 566. 

5. Position of trust or office or to render personal services. 

6. Claims for personal torts as battery, libel, or slander, false 
imprisonment, etc. 22 Cal. 177; 44 L.R.A. 177. 

Third : Assignment of part of fund — void in law but valid in Equity. 

38 Cal. 521. 
Fourth : To complete assignment, notice must be given to debtor. 
124 Cal. 119; 77 Cal. 455; 3 Cal. App. 561 ; C.C. 1457. 1458; 
164 Cal. 419, 517; 164 Cal. 667; 163 Cal. 8; 30 Cyc. 47-51. 
Fifth : Assignments must be in writing when the law requires it 
otherwise may be oral, and proved bv parol. 128 Cal. 527 
124 Cal. 90; 105 Cal. 41 ; 104 Cal. 179; 99 Cal. 316; 86 Cal. 574 
74Cal. 409; 166Cal. 181. 



86. Assignee may sue as real party in interest, whether assignment be ab- 
solute, for collection, as security, or conditional, but suit is subject to 
22 Cal. App. 68; 77 Cal. 263; 123 Cal. 185; 105 Cal. 469; 98 Cal. 523; 
138 Cal. 216: 
1. All defenses and offsets existing at or before notice of assignment, 
except on negotiable instruments assigned before maturity for 
value and without notice. C.C.P. 368; 165 Cal. 108, 309, 326; C.C. 
1459; 101 Cal. 288; 113 Cal. 171 ; 162 Cal. 124; 163 Cal. 227. 

29 



In partial assij^'iiments, assif^nor and other assignee must be par- 
ties to suit. 38 Cal. 514. 

In all actions the assignment must be alleged and proven. 114 
Cal. 195; 116 Cal. 276; 128 Cal. 195; C.C.P. 385; C.C. 1052; 18 Cal. 
App. 277 ;14 Cal. App. 538; Pom. Rem. 64, 65, 70-75, 82-98, 165, 
217. 236; 30 Cyc. 47. Assignor cannot sue— 10 Cal. 579. 



87. Assignee may be sued as defendant in actions: 

1. Affecting property rights conveyed; 

2. To enforce or recover obligations expressly assumed by him. 118 
Cal. 419. 

3. Assignee can plead all defenses assignor could make, including 
Statute Frauds and Limitations. 164 Cal. 623 ; 85 Cal. 507 ; Sec. 
31 (3) Ante.; Pom. Rem. 167, 233, 234, 245, 246; 164 Cal. 435; 86 
Cal. 574; 96 Cal. 407; 109 Cal. 133, 312; C.C. 1531. 



88. Principal and agent. An agent is one who represents another called 
the principal ; and may be special or general ; actual or ostensible. C.C. 
2295-2300. 

89. In disclosed agency, and within scope of agents authority — 

1. Principal alone can sue to recover, benefits or damages. 75 Cal. 
124. 

2. In obligations, principal alone sued, unless agent assumed per- 
sonal liabilitv, then either or both. 12 Cal. App. 681 ; 5 Cal. App. 
388. 

3. In torts, either or both may be sued. 117 Cal. 417; 154 Cal. 420. 

4. In such cases agency need not be alleged but must be proven. 37 
Pac. 646. 

5. If contract is taken in agent's name alone, principal not liable and 
cannot be sued. 91 Cal. 72; C.C. 2330, 2338, 2339, 2343; Pom. 
Rem. 103, 105; 163 Cal. 31 ; 148 Cal. 669. 

90. In undisclosed agency, within scope of authority, but in agent's name, 

1. Principal may sue alone to recover benefits or damages, as real 
party in interest- — except for personal service. 22 Cal. App. 456; 
24 Cal. App. 183. 

(a) But suit subject to all defenses and set offs against agent 
before notice of agency. C.C. 2336; 103 Cal. 43. 

2. Agent may sue alone as trustee. 53 Pac. 693; 154 Cal. 108. 

3. On obligations, either, but not both may be sued, unless agent as- 
sumed personal liabihty. then both. 89 Cal. 244; 91 Cal.>2; 114 
Cal. 689; 57 Cal. 219; 66 Cal. 69; 167 Cal. 184. 

4. In torts, either or both may be sued. 

5. In such cases agencv need not be alleged, but must be proven. 
37 Pac. 646; Pom. Rem. 79. 103; 30 Cyc.\S2-58 ; 141 Cal. 437. 



91. In all cases, where agent acts without or beyond scope of authority in 
name of principal or himself alone. — 

1. Principal cannot sue or be sued unless he ratifies acts. C.C. 2310. 

2. Without principal's ratification, agent alone liable or benefited, 
and can sue or be sued alone. C.C. 2343; 151 Cal. 611. 

3. Instances of acts by agent beyond his authority. 168 Cal. 715. 

30 



LECTURE 7. 

Parties — Trustees — Executors and Administrators — Heirs — Minors and 

Incompetents — Parents. 

93. Trustee is one in whom property is vested for licncfit of another called 
"beneficiary," their relation constituting:^ either — 

1. Express Trusts — specifically declare by deed, declaration, will 
or express contracts, or C.C. (S52, 837. 2216. 

2. Implied or constructive trusts — im])osed by law from fraud or 
wrongful act of Trustee; or C.C. 2224, 2223. 

3. Resulting trusts — implied by law from relation or acts of parties. 
C.C. 853"; 121 Cal. 39; Sec. 621 post. 



94. In actions affecting trust, or trust ])roperty or rights, by or against 
third persons, — 

1. Trustee alone may sue or be sued, or the beneficiarv mav be joined. 
91 Cal. 504; (132 Cal. 627, Foreign Trustee). 

2. Beneficiarv may sue alone to enforce contract made expressly for 
his benefit ;— 30 Cyc. 85 ; Civ. Code 1559; 67 Cal. 295 ; 95 Cal. 108; 
7Z Cal. 525; 110 Cal. 346. But in other cases cannot sue alone 
unless, 

(a) Demand to sue is first made on trustee ; 

(b) He refuses or fails within reasonable time ; 

(c) Trustee is made a partv defendant. 25 Cal. 29 ; 48 N.Y. 517 ; 
39 Cyc. 448. 

3. Beneficiary cannot be sued alone, unless his e(|uitable interest is 
alone concerned. 

4. In actions by Trustee, he need not allege or prove trusteeship. 71 
Cal. 598; C.C.P. 369; C.C. 863; Pom. Rem. 100-106. 164. 174. 235; 
39 Cyc. 446. 



95. In action involving relations between Trustee and beneficiary or be- 
tween beneficiaries alone, all persons interested must be made parties. 
149 Cal. 7. 

1. Beneficiary cannot sue Trustee to quiet title, or recover posses- 
sion. 77 Cal. 295 ; 84 Cal. 126, 456 ; 92 Cal. 9. Sec. 829 post. 

2. His only remedy is to compel Trustee to convey legal title to him. 

3. In these actions, the trust must be alleged and shown. Sees. 644- 
647 post. C.C. 863; Pom. Rem. 178, 182. 247. 253-256. 



96. An Executor is a person appointed to administer an estate under a Will, 
by which the estate goes to Devisees and Legatees ; an Administrator is 
a person appointed to administer an estate where there is no will, in 
which the estate goes to heirs. 18 Cyc. 55 ; 21 Cyc. 411 ; 14 Cyc. 285. 

1. They are known in law as legal representatives. 25 Cyc. 175. 

2. In all actions, qualification of executors and administrators must 
be alleged, — 

(a) Time and place of death of deceased, and whether testate or 
not ; 

(b) Prosecution of proceedings in proper court for probate of 
will or estate ; 

(c) Appointment and qualification of executor or administrator; 

(d) That such appointment not revoked. 15 Cal. App. 483; ^7 
Cal. 389; 136 Cal. 31 ; 93 Cal. 656; 154 Cal. 695; 72 Cal. 547; 
30 Cyc. 93. 

31 



97. In all actions for recovery of real or j^ersonal property, qniet title, re- 
cover possession, injuries to it, and upon contracts, — 

1. Executors and administrators may sue or be sued alone, or with 
heirs. C.C.P. 1581-1584, 1589, 1590. 

2. Heirs or devisees cannot sue alone, except 

(a) For possession or quiet title to real property against third 
persons. C.C.P. 1452; 146 Cal. 577. 

(b) For death of ancestor (except minor) caused by wrongful 
act or neglect. C.C.P. ^77; 164 Cal. 188, 564; 24 Cal. App. 
22; 152 Cal. 290. 

(c) Must sue alone to declare a trust and compel reconveyance 
thereof, or for partition. 126 Cal. 482; 106 Cal. 107; 57 Cal. 
368. 

(d) Before appointment of executor or administrator. 146 Cal. 
577. 

3. Before actions on contract can be maintained against executors, 
administrators, or heirs, or devisees. C.C.P. 1500; 160 Cal. 491; 
147 Cal. 257. 

(a) It must be presented within time prescribed. C.C.P. 1493. 

(b) Rejected as provided by Code. C.C.P. 1498, 1496. ^ 

(c) Action commenced within time prescribed. C.C.P. 1498. 

(d) Complaint must allege presentation of claim and its rejec- 
tion. 149 Cal. 303. 

4. No action can be maintained by or against either for personal 
torts by or on deceased such as battery, libel, slander, etc. They 
die with him, except when in judgment. 149 Cal. 151 ; 57 Cal. 245 ; 
168 Cal. 722; 136 Cal. 31 ; Pom. Rem. 109, 166, 172, 175, 216, 235, 
248-252; 163 Cal. 681; Sec. 539 post; 148 Cal. 180; 150 Cal. 606, 
281; 148 Cal. 669; 154 Cal. 456; 152 Cal. 338; 153 Cal. 704; 168 
Cal. 94. 

5. No action against estate for torts of executor or administrator. 38 
Cal. 21 ; 119 Cal. 492 ; 146 Cal. 724. 



98. Foreign Executor or Administrators — those appointed by other state 
or country — cannot sue or be sued elsewhere, except as trustee of title 
to property or contract right. 166 Cal. 23 ; 89 Cal. 348 ; 70 Cal. 403. 



99. Incompetents, minors and parents defined and status explained. 

1. Incompetents are — persons insane, imbecile, and by reason of 
mental weakness unable to manage their property. 165 Cal. 202; 
C.C.P. 1767; 161 Cal. 380. 

2. Minors are those persons under legal age, namely males under 21 
years and females un(jer 18 3^ears. C.C. 25. 

3. A parent is the father or mother of a child — by nature or by 
legal adoption. C.C. 193, 228; 106 Cal. Z77 . 



100. All actions involving property or contract rights and liabilities, incom- 
petents and minors must sue or be sued in their own names, but must 
appear either (C.C. 41, 42, 38, 36; 95 Cal. 454; 87 Cal. 530; 64 Cal. 593; 
133 Cal. 648; 106 Cal. 506; 102 Cal. 595 ; C.C.P. 1769) : 

1. By General guardian appointed by Probate Court and duly quali- 
fied, or 

2. By Guardian ad litem, appointed by court in the particular action, 

32 



(a) Must 1)0 appointed for plaintiff before action commenced and 
same alleged in complaint. 165 Cal. 103; 56 Cal. 321; 74 
Cal. 52; 150 Cal. 535 ; 108 Cal. 214; 

(b) Must be appointed for defendant after action commenced, 
and summons served. 66 Cal. 53 ; 63 Cal. 562; 

(c) Failure to appoint does not affect jurisdiction, but an irreg- 
ularity. 115 Cal. 195; 103 Cal. 387; 74 Cal. 57; 4 Cal. App. 
571 ; 114 Cal. 210. 

(d) No notice of application to appoint required. 133 Cal. 418. 
3. Unmarried female, whether minor or adult, mav sue for her own 

seduction. C.C.P. 374; 65 Cal. 575; 98 Cal. 557; 61 Cal. 380; 21 
Cyc. 186; C.C.P. 372, 373, 843; Pom. Rem. 110. 



101. Statutory actions by or against parents or guardian relating to children 
and wards : 

First : By or against parents — 

1. The father, or if dead or deserted family, the mother sue 
for 

(a) Seduction of daughter, whether minor or adult; 

(b) Injury or death of minor child by wrongful act or 
neglect. C.C.P. 375, 376; 159 Cal.' 270; 24 Cal. App. 
286; 115 Cal. 390:44 Cal. 48. 

2. Parent cannot be sued for contracts or torts of minor 
child by virtue of such relation. 10 L.N.S. 933 ; 41 L.N. 
S. 775. 

3. Except certain parents may be sued for necessaries fur- 
nished child or for its support. C.C. 207, 208; 20 Cal. 
App. 288. 

Second : By or against Guardian — 

1. General guardian can sue for (C.C.P. 376, 375) : 

(a) Seduction of his ward; 

(b) Injury or death of w-ard by wrongful act or neglect. 

2. No guardian as such can be sued for contracts or torts 
of ward. 21 Cyc. 73, 115 ; 

3. Except may be sued to extent of minor's estate for his 
support and maintenance. C.C.P. 1771; Pom. Rem. 150. 

102. In all actions involving such parties, the minority, incompetency, or 
status of parties must be alleged in complaint and shown. 21 Cvc. 210; 
31 Cvc. 99. 



33 



LECTURE 8. 

Parties — Married Women — Persons Jointly or Severally Associated. 

105. Rules stated in actions by or aLiainst married woman, or involving 
rights of husband and wife. 

1. In all actions l)_v or against married woman, her lnisl)and must be 
joined, except 

(a) When affecting her separate property, or homestead right — 
she may sue but not sued alone. 11 Cal. App. 622; 136 Cal. 
301; 126 Cal. 471; 110 Cal. 423. 

(b) Actions between her and husliand — she may sue or be sued 
alone. 

(c) When living separate from husl)and because of his desertion 
or by agreement — she may sue or be sued alone. 105 Cal. 
690. 

(d) For alienating her husband's affections — she may sue alone. 
122 Cal. 253.*^ 

(e) For injury to her person, libel, slander, false imprisonment, 
or malicious prosecution — she may sue alone. 167 Cal. 286 ; 
110 Cal. 487. 

(f) For torts committed by her — she alone liable but husband 
joined. C.C. 171a; 137 Cal. 273. 

2. In all actions affecting community property, including wife's earn- 

ings — husband must sue or be suecl alone, except 130 Cal. 
286. 

(a) When husband deserted wife, or waived right thereto — she 
may sue alone for earnings. 100 Cal. 276 ; 

(b) In actions for community property conveyed by husband 
without valuable consideration — wife may sue alone. 

3. Relation between them should be alleged — tho' not absolutely es- 

sential. 67 Cal. 458; 77 Cal. 390; 96 Cal. 611. 

4. When joined wife may defend for both. C.C. P. 370, 371 ; C.C. 172, 
169, 168, 167, 164; Pom. Rem. 151-160, 219-225; 164 Cal. 343. 

5. Judgment against wife when husband not joined — not void. 154 
Cal. 83. 

6. Husband sued alone for necessaries furnished wife. 69 Cal. 521. 



106. When the right or liability of several persons is joint or several ex- 
plained. 

1. Joint — w'hen entire right is vested or liability imposed upon all 
undivided. C.C. 686, 1430, 1431 ; 129 Cal. 239 ; 69 Cal. 620. 

2. Joint and several — when in all undivided and in each severally. 
C.C. 1659-60; 140 Cal. 537. 

3. Several— when in each severally. 19 Cal. App. 450; 40 Cal. 162; 
85 Cal. 500. 

4. Such persons may be classified as follows : 

(a) Several persons interested in or obligated upon same con- 
tract or transaction. 

(b) Several insurers of same interest. 

(c) Principal and surety or guarantor. 

(d) Partners in same business. C.C. 2442; 110 Cal. 459. 

(e) Tort feasors. 

(f) Tenants in common or joint tenants. 

(g) Landlord and tenant. 

(h) Numerous persons having common interest. 
C.C.P. 381, 382, 383, 384; 166 Cal. 394. 

34 



107. General rules stated as to joinder of parties in an action. 

1 Those jointly interested or liable — must be joined as plaintiffs or 
defendants. C.C.P. 382; 129 Cal. 239; 69 Cal. 620; 88 Cal. 292; 
115 Cal. 579. 

(a) Thev arc necessary parties — -without whom action cannot be 
prosecuted. 

(b) After joinder — judgment mav l)c entered for or against less 
than all. C.C.P. 414, 579. 578, 989 ; 136 Cal. 70 ; 150 Cal. 772 ; 
140 Cal. 548. 

2. Those jointly and sevcrallv interested or liable — mav or mav not 
be joined. 161 Cal. 257 ; 140 Cal. 537 ; 123 Cal. 657. 

(a) They are "proper parties" — having an interest — but action 
may be prosecuted without them. Pom. Rem. 60, 61, 226- 
229. 

3. Those severally interested or liable cannot be joined, except — 

(a) When created by same obligation or instrument — mav or 
may not be joined. 19 Cal. App. 450; 75 Cal. 634; 118 Cal. 
413; C.C.P. 383. 

(b) Several insurers of same interest may be sued together. 
C.C.P. 383. 

(c) Separate owners may enjoin in Equitv common injury, but 
not for damages. _ 88 Cal. 292 ; 67 Cal.'272 ; 87 Cal. 430. 

(d) Separate mechanic's lien claimants mav sue in same com- 
plaint. C.C.P. 1195; 88 Cal. 42._ 

(e) Landlord and tenant may be joined in suit to recover title 
or possession real property. C.C.P. 379. 

(f) Partv in possession and adverse claimant may be sued in 
suit to quiet title. C.C.P. 380. 

(g) Several owners may jointly sue to establish common source 
of title. 137 Cal. 305 ; 152 Cal. 643 ; C.C.P. 381 ; Pom. Rem. 
111-122, 143-149, 161-187, 200-207, 226-284. 299-307; 160 Cal. 
601 ; 30 Cyc. 105. 120. 

(h) Proceedings against joint debtors. C.C.P. 989; 67 Cal. 26; 
140 Cal. 548. 



108. Rule stated in actions by or against partners — 

1. Partners must sue in individual names as partners and all must 
join. 

2. Partners may be sued in partnership name — judgment affecting 
only partnership assets, and partners served ; or all must be sued in 
individual names as partners. 16 Cal. App. 589. 

3. Partners doing business in fictitious name — cannot sue unless a 
certificate showing names of partners is filed and published. 135 
Cal. 621. ^ 

4. One partner cannot sue another at law — only in Equity for ac- 
counting, etc., as to partnership transactions, but mav as to others. 
21 Cal. App. 754; 127 Cal. 564; 136 Cal. 78. 

5. In all cases, partnership must be alleged. 72 Cal. 544. 

6. Filing of partnership certificate should be alleged in complaint 
when fictitious name appears therein — otherwise it is matter of de- 
fense. 67 Cal. 635: 64 Cal. 73; 101 Cal. 89; 135 Cal. 621 ; C.C.P. 
388; C.C. 2466, 2468; Pom. Rem. 141. 257, 262, 275, 42; 167 Cal. 
387; 14 Cal. App. 363; 110 Cal. 460. 

109. Rule stated as to Tort feasors — 

1. Acting by common design — all or less number may be sued. 22 

35 



Cal. App. 215 ; 103 Cal. 52 ; 147 Cal. 694. 

But only one satisfaction. 110 Cal. r.l4; 113 Cal. 414, 649; 127 

Cal. 438.' 

2. Acting separately hut i^roducintj;' common injury — 

(a) Cannot be joined in action at law for damages. 

(b) May be joined in action in Equity to restrain. 87 Cal. 430; 
88 Cal. 290. 

3. Cannot sue each other for contril)ulion. 162 Cal. 136; I'om. Rem. 
208-215; 21 Cal. App. 577 \ 26 Cal. App. 223; 127 Cal. 440; 44 Cal. 
319. 



110. Rules stated as to tenants in ccjmmon or joint tenants. 

1. All or less may sue or defend in actions affecting common prop- 
erty. 

2. One tenant can recoyer entire property from stranger, but only 
his damage. 139 Cal. 562; 80 Cal. 629;'91 Cal. 593; 25 Cal. 175. 

3. One tenant can sue for portion for benefit of co-owners. 144 Cal. 
29; C.C.P. 384; Pom. Rem. 135-142. 168, 195-199; 14 Cal. App. 60; 
165 Cal. 386; 136 Cal. 631. 



111. Where numerous persons are interested or liable, one may sue or de- 
fend for all. This applies— 58 Cal. 183 ; 21 Cal. 630. 

1. To members of unincorporated church or association. 77 Cal. 
248; 136 Cal. 614; 79 Cal. 372. 

2. Creditors of same debtor. 104 Cal. 7. 

3. Stockholders in same corporation. 

4. ]\lembers of community haying similar interest. 

5. But judgment will not bind or benefit those who do not come in 
or brought in and become party to action. 104 Cal. 7. 

6. It must be alleged in complaint or answer, — 

(a) That question is one of common or general interest, or 

(b) That parties are numerous and impracticable to bring all in, 
and 

(c) That action is brought or defended for benefit of all who 
choose to come in and assist therein. C.C.P. 382 ; Pom. 
Rem. 181, 243, 244, 285-298; 165 Cal. 687; 21 Cal. 630; 77 
Cal. 247 ; 1 19 Cal. 477 ; 136 Cal. 613 ; 30 Cyc. 132. 



36 



LECTURE 9. 

Parties — Corporations — Stockholders — Receivers — Public Bodies — Public Of- 
ficers — Tax-payers — Fictitious Persons. 

114. Private corptjrations usually haxe power to sue and be sued — but true 
only when such power is granted by its charter or law of its organiza- 
tion. 

1. All actions must be maintained in its corporate name. 95 Cal. 592. 

2. Stockholder can sue on corporate right, only (155 Cal. 562) 

(a) After demand on its board of directors to sue or defend, ex- 
cept when unavailing. 84 Cal. 70; 93 Cal. 17. 

(b) Refusal of Board or failure for reasonable time. 

(c) Corporation made a partv defendant. 95 Cal. 592; 103 
Cal. 96. 

3. Incorporation and vmder what law or charter should be alleged in 
complaint. 83 Cal. 398. 

4. Domestic corporation cannot maintain or defend actions as to 
property in any county (other than principal place of business) 
until it files therein copv of its articles. C.C. 299; 14 Cal. App. 
530; 148 Cal. 252. 

5. Foreign corporations, doing business in this state, cannot sue with- 
out filing charter as provided by law. C.C. 406, 410; 23 Cal. App. 
211 ; 2 Cal. App. 582; 153 Cal. 533. 

6. Filing Articles in either case need not be alleged in complaint — 
matter of defense. 12 Cal. App. 85. 

7. Stockholders mav be sued severallv or joined in one complaint 
for corporate debts. 166 Cal. 346; 160 Cal. 577; 15 Cal. App. 37; 
107 Cal. 446, 629; 108 Cal. 1 ; 133 Cal. 506; 82 Cal. 650. 

8. Directors may be sued individually for misappropriation of funds, 
paving out capital, etc. C.C. 354, 322, 309. Effect of dissolution or 
forfeiture charter. 166 Cal. 322; 164 Cal. 380; 150 Cal. 575; Pom. 
Rem. 258-261 ; 30 Cyc. 23 ; 23 Cal. App. 560. 



115. Rule stated when state, county, city, or public institution may sue or 
be sued. 

1. State government — 

(a) There seems to be no limit to its right to sue to protect 
public property or rights. 166 Cal. 576; Pol. C. 42; 153 
Cal. 38. 

(b) It cannot be sued unless speciallv authorized bv statute. 
Stat. 1893, p. 57; Stat. 1909, p. 605; Stat. 1901, p. 646; 
C.C.P. 390; 164 Cal. 199; 102 Cal. 283; 121 Cal. 16; 123 Cal. 
316; 131 Cal. 363 ; 104 Cal. 690; 154 Cal. 728. 

2. County, city and all public institutions usually given power to 
sue or be sued — but only when so granted. 

(a) Cannot be sued for negligence of its officers in public works. 
149 Cal. 70. ^ ^ 

(b) Can be sued for such negligence in conducting business of 
private nature. 149 Cal. 70; 152 Cal. 592; 158 Cal. 86. 

3. The fact it is a county, city or public institution, need not be al- 
leged in complaint. The Court takes judicial notice of their ex- 
istence. 162 Cal. 425; 14 Enc. PL and Pr. 225; 5 Enc. PL and 
Pr. 300; 30 Cyc. 25. 

37 



116. Public officers may sue or be sued respectinj^ their official acts, for 
negligence in their performance or relating to their office. In actions 
involving official acts, their official character must be alleged. Pom. 
Rem. 107; 165 Cal. 48; 162 Cal. 422; 20 Cal. App. 624; 89 Cal. 604; 16 
Cal. 1 ; 47 Cal. 536 ; S3 Cal. 447 ; 153 Cal. 441 ; 168 Cal. 270. 



117. Rule stated as to recei\ers suing or being sued: — 

1. Receiver is officer of court, taking and holding for court prop- 
erty involved in an action. Sees. 319-324 post. 

2. In state of appointment, he mav sue or be sued respecting such 
property (84 Cal. 10; 138 Cal. 236) — 

(a) To recover property affected by action. 

(b) To determine claims thereto. 

(c) To determine claims to funds in his hands. 

3. Leave of court of appointment must be first obtained to sue or 
be sued. Ill Cal. 497. 

4. His appointment, qualification and leave of court must be alleged 
in complaint. 119 Cal. 4. 

5. Foreign receivers allowed to sue where no conflicting claims of 
domestic creditors. Pom. Rem. 258; 135 Cal. 236; 4 L.N.S. 824; 
81 Cal. 551 ; C.C.P. 568 ; 146 Cal. 598. 



118. An action or proceeding may be maintained by a tax-payer as such 
against a public body or corporation, or public officers, — 

1. To restrain commission of acts not authorized by law. 112 Cal. 543. 

2. To prevent exercise of powers not conferred by law. 113 Cal. 163. 

3. To compel restoration of public funds or property misappropriated. 

4. To prevent or set aside acts imposing unjust or illegal burdens. 

5. To compel the performance of acts enjoined as a dutv bv law. 
114 Cal. 605. 

6. Cannot abate public nuisances. 89 Cal. 627 ; 74 Cal. 464. 

7. Cannot compel performance of discretionary duties. 114 Cal. 605. 

8. Qualification and standing of tax-payer must be alleged in com- 
plaint. 14 Cal. App. 662. 

9. Tax-payers as such cannot be sued, except for taxes due. Sec. 694 
post; Pom. Rem. 80, 283, 292; C.C.P. 526A ; 168 Cal. 706; 28 Cyc. 
1732-1748; 165 Cal. 576; 87 Cal. 173; 80 Cal. 366; 54 Cal. 360; 53 
Cal. 392 ; 129 Cal. 36. 



119. Rules stated as to suing persons by fictitious name or wrong name. 

1. When plaintiff is ignorant of true name of a defendant — may sue 
in fictitious name. 7 Cal. App. 649. 

(a) Must allege that true name is not known. 

(b) That name used is fictitious. 

(c) Pray that true name be substituted when ascertained. 

(d) When true name discovered, pleading must be amended 
accordinglv. 132 Cal. 195; 125 Cal. 101; 113 Cal. 499; 63 
Cal. 118; 70 Cal. 26. 

2. In action against a person in fictitious or wrong name, but right 
person is actually served, judgment obtained is binding and con- 
clusive against him. 

38 



(a) Property of such person in true name cannot 1)e success- 
fully sold on execution. 

(b) But action on judij^nicnt can he maintained and new judg- 
ment secured in true name which mav then iDe enforced by 
execution. C.C.P. 474; 154 Cal. 19; 72 Cal. 562. 

Mistake in name of party may be corrected by amendment. 2 Cal. 
App. 436. 



39 



LECTURE 10. 

Parties — Adding and substituting new parties — Intervention — Interpleader. 

121. Parties to an action named in the coni])laint, may (lurin,^- the pendency 
of the action be changed : 
1.- By dropping" some person originally named therein. 

2. By adding other persons either as plaintiff or defendant. 

3. By substituting some other person for a party already named. 

4. By the intervention of a stranger in the action. 



122. Any party named in' an action may be dropped therefrom — 

1. By plaintift''s amending his complaint omitting such party before 
judgment. 

2. By the dismissal of the action as to such party. Sec. 279 post. 

3. When so dropped, the action is ended as to such person. 

4. All the plaintiffs or all the defendants cannot be so dropped with- 
out fully terminating the action. 51 Cal. 153; 31 Cal. 11; C.C.P. 
473; 22 Cal. App. 63: 152 Cal. 643; 1 Enc. PI. and Prac. 543-546. 



123. A stranger may be added as a party in an action to those already 
named. 

1. By plaintiff' amending his complaint naming him before trial. 70 
Cal. 507. 

2. By order of court when complete determination cannot be had 
without presence of stranger (10 Cal. App. 75 ; 116 Cal. 448) — 

(a) On Court's own motion. 149 Cal. 8; M8 Cal. 669; 69 Cal. 
621. 

(b) On application of plaintiff' or defendant. 

(c) Party brought in by amended or supplemental complaint or 
cross-complaint, duly served and filed. 

3. On application of stranger in actions to recover real or personal 
property or determine conflicting claims thereto. 

(a) By motion upon notice to parties in action. 

(b) With affidavits showing his interest in subject of action. 

(c) When granted, party brought in by amended complaint and 
summons. C.C.P. 389; Pom. Rem." 311, 312, 315-319; 1 Enc. 
PI. and Prac. 535-542. 



124. Another person may be substituted for a party, or continue the action 
for him — 

1. Upon the death of a party, his legal representative — executor or 
administrator. 167 Cal. 11; 140 Cal. 179; 157 Cal. 380. 

(a) Order of substitution made ex parte in trial court. 116 Cal. 
276. 

(b) Supplemental pleading served and filed alleging death, and 
appointment of representative. 93 Cal. 656; 86 Cal. 561. 

(c) If action on appeal, substitution first made in trial court, 
and then certified to higher court. 128 Cal. 335. 

2. Upon party becoming insane or incompetent, action continues in 
his name, but guardian appointed to represent him. 

3. Upon assignment of party's interest in an action. 

First : Assignee may continue action in partv's name. 124 Cal. 
308; 138 Cal. 587; 146 Cal. 654. 

40 



(a) But party cannot thereafter crmtrol nor do anything in 
action. 124 Cal. 142. 308. 

(b) If party dies, assignee must then he suhstitutecL 124 Cal 
309; 138 Cah 657; i39 Cal 420. 

Second; Or assignee may at once be substituted in place of 
party, 

(a) On order of trial court, obtained by motion on notice to 
opposite parties. 138 Cal. 656; 98 Cal. 123; 128 Cal. 268; 
168 Cal. 468. 

(b) And affida\'its shctwing transfer of i)arty's interest. 

(c) Serve and file a supplemental pleading setting up trans- 
fer. 116 Cal. 273. 

(d) If on appeal substitution made in trial court and then 
certified. 138 Cal. 657; C.C.P. 385; 166 Cal. 345; 165 Cal. 
24; 150 Cal. 610; 20 Enc. P. and Prac. 1021. 

4. AMien third person makes adverse claim against defendant in ac- 
tions on contract or for personal property, — third person may be 
substituted — 

(a) On application to court before answer. 

(b) Upon notice to plaintiff and the third person. 

(c) AA'ith affidavits showing conflicting claims made without de- 
fendant's collusion. 

(d) If granted, order made substituting stranger and dismiss- 
ing defendant on his depositing money or property. Sec. 
341 post. 

(e) Third party brought in bv service of summons and order 
substitution, etc. C.C.P. 386; Pom. Rem. 314; 12 Cal. 99; 
23 Cyc. 36; 20 Enc. PI. and Prac. 1047. 

(f) Not applicable in supplemental proceedings. 72 Cal. 513. 
Successor to public officer. 54 Cal. 201. 



125. In actions of Interpleader — when persons make conflicting claims against 
another on contract or for personal property, such person may bring 
action to compel claimants to interplead. 

1. Right of plaintiff to bring action is first determined. 

2. If sustained, interlocutory order entered requiring defendants to 
interplead. 123 Cal. 107.' 

3. Plaintiff is thereby discharged as party on depositing in court 
money or property. 133 Cal. 643. 

4. Defendants continue action — their answers being treated as cross- 
complaints and served on each other. 69 Cal. 153; C.C.P. 386; 
Pom. Rem. 314; 19 Cal. App. 344; 123 Cal. 109; 81 Cal. 145; 146 
Cal. 281; 56 Cal. 43; 127 Cal. 515; 96 Cal. 298; 11 Enc. PI. and 
Prac. 446-481 ; 23 Cyc. 2-35. 



126. A stranger may be introduced as party in an action by intervention. 

1. Anv person not a partv mav intervene at any time before trial of 
action. 128 Cal. 636 ; iZ Caf. 742 ; 83 Cal. 487. 

(a) Who has an interest in subject matter of action, or 

(b) AVho is interested in success of either partv or against both. 
Ill Cal. 386; 131 Cal. 93 ; 5 Cal. App. 581. 

(c) Interest must be direct and proper to be determined in the 
action. ^:^Z Cal. 742; 124 Cal. 109; 121 Cal. 26; 93 Cal. 316; 
131 Cal. 316, 91. 

41 



2 Effected bv order of court on ajjplication In- Intervener without 
notice, in Cal. 386. " 

3 Then file complaint in Intervention setting up interest. 125 Cal. 
459 ; 135 Cal. 9. 

4. Serve on attorney of parties who have appeared. 

5. Have summons issued and served on parties who have not ap- 
peared. 

6. Parties mav plead to it, and file cross-complaint, same as to orig- 
inal complaint. 130 Cal. 44; C.C.P. 387; Pom. Rem. 313, 320- 
325; 11 Enc. PI. and Prac. 494; 157 Cal. 377, 552; 58 Cal. 348; 144 
Cal. 501 ; 168 Cal. 727. 

7. If leave is denied, applicant to intervene may appeal. 12 Cal. 
App. 187. 

8. In Insolvencv proceedings, a debtor may intervene to establish 
setoff. 168 Cal. 241. 



42 



LECTURE 11. 

Complaint — Statement of cause of action. 

128. By "Statement of cause of action" is meant alleginj^: the facts showing 
all the elements necessary to constitute a cause of action in plaintiff. 

1. One count or statement must contain a sint^le cause of action. 

2. It must be com]iletc. and iKit split up into parts. 53 Cal. 141 ; 161 
Cal. 42. 

3. It must be shown to exist at time of filing" complaint. 164 Cal. 472 ; 
121 Cal. 46; 98 Cal. 660; 108 Cal. 272 ;" 79 Cal. 269; Sees. 30, 32, 
ante. 

4. Necessary elements to show a cause of action are, facts showing 

(a) A right in plaintiff and corresponding duty on defendant. 

(b) ^'iolation of right or breach of duty. Sec. 13 (2) ante. 

(c) Damage or injury to plaintiff therefrom. 163 Cal. 561; 161 
Cal. 394; 73 Cal. 455; Pom. Rem. 326-328, 346-348, 412-418; 
60 Cal. 441 ; 31 Cvc. 92-125; 24 Cal. App. 698; 12 Cal. App. 
122 ; 6 Stand. Proc. 638 ; 4 Enc. PI. and Prac. 556, 587. 



129. The allegations of a count or statement of single cause of action should 
i)e arranged in paragraphs, each appropriately numbered. 

1. Statement should begin; "Plaintiff complains and alleges;" — 

2. If plaintiff or any one of them is corporation, executor, etc., first 
paragraph should contain allegations showing capacity to sue. 

3. Paragraph 2, should contain similar allegations as to defendant's 
capacity to be sued. 

4. Succeeding paragraphs should set forth cause of action, each para- 
graph containing allegations showing one necessary element 
thereof. 

5. Then should follow the prayer, or demand for relief. 

6. Then signature of plaintiff" or his attorney, with verification at- 
tached when made. 

7. When same cause is set out in separate counts, or several inde- 
pendent causes are set out in complaint — 

(a) Each count must state a complete cause of action, except 
one may refer to allegations of other. 

(b) Each count begins ; "Plaintiff' for a first (or second, etc.) 
cause of action, complains and alleges ;" 

(c) Demand of relief follows only the last count — for aggregate 
relief on all counts. 6 Stand'. Proc. 644-654, 712, 719, 706. 



130. The facts constituting the cause of action should be alleged in some 
definite order. 

1. Chronological — the order in which they occurred or developed; or 

2. Logical — the order of their importance from right to injury. Pom. 
Rem. 411, 423. 



131. Allegations of each count or statement of cause of action must be made 
on "one definite theory." 107 Cal. 254; 51 Cal. 543. 
1. Allegations must be made so as to show either 

(a) Necessary elements of a definite character of action, or 

(b) Application of a certain principle of law, or 

(c) To obtain a certain kind of relief. 

43 



If single cause of action is susceptible of ditterent theories, 

(a) If theories consistent, each theory must be stated in sepa- 
rate counts in same complaint. 12 Cal. App. 751; 105 Cal. 
429; 125 Cal. 234. 

(b) If theories inconsistent, one must be selected and alleged. 
121 Cal. 120. 

Plaintiff can recover only on theory alleged ; if proof shows an- 
other, complaint must be amended to conform thereto. 99 Cal. 
619; 134 Cal. 138; 113 Cal. 592; 135 Cal. 525; 145 Cal. 526; 166 
Cal. 128; 4 Cal. App. 515: 127 Cal. 312; Sees. 18-21 ante; C.C.P. 
469-471 ; Pom. Rem. 447-455 ; notes, p. 656; note 467; 165 Cal. 168, 
476; 16 Cal. App. 560; 163 Cal. 127; 18 Cal. App. 472; 13 Cal. 
App. 674; 12 Cal. App. 120; 5 Enc. PI. and Prac. 302; 21 Enc. PI. 
and Prac. 649; 31 Cyc. 122, 116, 651. 



132. A "single cause of action" exists when a single right and duty, is vio- 
lated by a single wrong or breach — thus usually 

1. All claims under one contract, constitute one cause of action, 

(a) Several mortgages to secure one debt or one mortgage se- 
curing several notes or debts. 149 Cal. 635. 

(b) Several installments or covenants each a separate cause, 
but after two or more accrue, one cause. 149 Cal. 117; 96 
Cal. 459. 

(c) Each separate purchase on book account, a single cause, but 
after several items accrue, only one cause. 

2. Each tort on a separate right, constitute a single cause — 

(a) Tort on a single tract, one cause; but repeated torts or con- 
tinuing damage before suit, all one cause. S7 Pac. 394; 109 
Cal. 209 ; 130 Cal. 20. 

(b) Tort on propertv and person at same time, separate causes. 
18 Cal. App. 454; 36 L.N.S. 240. 

3. Several different reliefs available on same theorv, not separate 
causes. 72> Cal. 455 ; 156 Cal. 776 ; 93 Cal. 32 ; 126 Cal. 67 ; 144 Cal. 
410; 129 Cal. 232; 149 Cal. 126; 108 Cal. 556; 148 Cal. 563; 109 
Cal. 130; Pom. Rem. 349-356; 1 Enc. PI. and Prac. 150-162; 23 Cyc. 
439-450; 11 Cal. App. 325: 1 CT. 1055-1064: 140 Cal. 150, 175; 147 
Cal. 739. 



133. A party cannot split a single cause of action into parts, and maintain 
an action on a part, nor set out parts in separate counts. 53 Cal. 146; 
72 Cal. 543. 

1. If in separate actions, one will bar the other. 164 Cal. 620; 121 
Cal. 485. 

2. If in separate counts, he may be compelled to consolidate in one 
count. 16 Cal. App. 441. 

3. This rule does not apply to separate actions on installments or 
severable parts of a contract sued on before several mature. C.C.P. 
1047; Pom. Rem. p. 470 note; 161 Cal. 42; 109 Cal. 209; 1 Enc. 
PI. and Prac. 150; 23 Cyc. 436; 1 C.J. 1106. 



134. In stating a cause of action, only facts (not law) must be alleged in 
"ordinary and concise" language, illustrated by following rules : 
1. Onlv English language used — documents in foreign language trans- 
lated. C.C.P. 185 ; 20 Cal. App. 153 ; 92 Cal. 649. 

44 



2. Ordinary abbreviations niav l)e used — technical or trade terms 
explained. C.C.P. 186; 135 Cal. 28; 95 Cal. 134. 

3. Only facts alleged, as distinguished from law, legal conclusions 
or presumptions. Pom. Rem. p. 564 notes; 23 Cal. App. 310; 15 
Cal. 414; 100 Cal. 432; 124 Cal. 82; 123 Cal. 586; 115 Cal. 642; 
31 Cal. 273 ; 154 Cal. 647 ; 97 N.W., 535. 

4. Only material facts — not matters of inducements nor incidental 
details. C.C.P. 463; 15 Cal. 415. 

5. Only ultimate facts — not probative facts or evidence. Pom. Rem, 
p. 568 notes; 117 Cal. 224; 98 Cal. 660. 

Difference between ultimate fact and conclusion of law. 71 Cal. 
273. 

6. Statements must be certain as to time, place, persons and facts, 
intelligible and not ambiguous. 161 Cal. 649; 17 Cal. App. 363: 
11 Cal. App. 190; 82 Cal.'^212; 124 Cal. S3, 99; 39 Cal. 618. 

7. Repetitions avoided — statement of a fact once alleged should not 
be repeated in that count. 15 Cal. 417. 

8. Allegations must not be argumentative, hypothetical, or in alter- 
native in complaint. 90 Cal. 541; 117 Cal. 225, 481; 50 Cal. 132: 
123 Cal. 299. 

9. No complaint should allege facts anticipating a special defense : 
but must be drawn to avoid demurrer or any pleading raising 
defects appearing on face of complaint. 161 Cal. 425 ; 145 Cal. 
410; 21 Cal. 349:^80 Cal. 572; Pom. Rem. 400-435, p. 599-603 notes; 
160 Cal. 601 ; 5 Stand. Proc. 204. 

10. ^Matters of substance must be alleged in direct and distinct terms, 
and not by way of inference, recital or argument. • 117 Cal. 483: 
11 Cal. App. 345; 123 Cal. 301 ; 6 Stand. Proc. 722-729. 



135. The form of the allegations in stating a cause of action must be either, 

1. Direct and Positive — when the fact is. or is presumed to be. within 
plaintiff's knowledge — thus: "Plaintiff' alleges that defendant ex- 
ecuted a contract, etc." 

2. On his information or belief — in all other cases, thus : "Plaintiff is 
informed and believes and on that ground alleges that — ." C.C.P. 
446; 152 Cal. 201 ; 124 Cal. 115; 34 Cyc. 108. 



136. The following are examples as to what is deemed a sufficient statement 
of cause of action in certain special cases under the Code. See more 
complete list Pom. Rem. pp. 668-690. 



1. Accounts. 

Not necessary to set forth items or copy of account. SufiFicient to al- 
lege aggregate amount, credits, and for what in general terms, and 
furnish a bill of particulars on demand. C.C.P. 454. 886; Pom. Rem. p. 
668; 162 Cal. 722; 22 Cal. App. 734; 12 Cal. App. 682. 692; 5 Cal. App. 1 ; 
110 Cal. 687. 



2. Stated Account. 

Should not allege items of account, but only that an account existed, 
amount thereof, and facts showing it has become stated. No bill of 

45 



particulars can be demanded. 13 Cal. 171; 74 Cal. 60; 103 Cal. 550; 
Pom. Rem. p. 668. 



3. Contracts, Written. 

May be alleged in either of following ways : — 

1. Set out copy — in haec verbae — in body of complaint, or 

2. Attach copy as an exhibit to complaint, or 

3. Plead its legal effect — care being taken to state fully and cor- 
rectly. Sec' 542 post; 149 Cal. 198; Pom. Rem. p. 543 note; 82 
Cal. 657; 104 Cal. 473. 

4. Recitals in contract so pleaded, will not supply want of essential 
averments in pleading. 164 Cal. 686; 24 Cal. App. 698. 



4. Conditions Precedent. 

1. Not necessary to allege facts showing performance of terms and con- 
ditions of contract by plaintiff, but only in general terms — that plain- 
tiff has performed all the terms and conditions of the contract on his 
part to be performed. 156 Cal. 778; 155 Cal. 419; 8 Cal. App. 124; 168 
Cal. 23, 140. 

Performance of conditions subsequent need not be alleged at all. C.C.P. 
457, 459; 49 Cal. 570; 87 Cal. 498; 141 Cal. 672; 78 Cal. 184; 124 Cal. 
168; 133 Cal. 31; 148 Cal. 662; 14 Cal. App. 221; Pom. Rem., p. 671. 

2. But when right, claim or status is founded upon a statute, must plead 
performance of every step or condition precedent to creating such right 
claim or status. 11 Cal. 163; 24 Cal. 630; 35 Cal. 441; 52 Cal. 350; 97 
Cal. 305, 316; 157 Cal. 295; 158 Cal. 175; 118 Cal. 680; 144 Cal. 645. 



5. Description Property. 

In actions to recover real property it must be described with such cer- 
tainty an officer upon execution may identify it by the description alone. 
C.C.P. 455, 2077. 

Reference to recorded map by lot and block sufficient. 108 Cal. 529; 
105 Cal. 431; 114 Cal. 295. 

By some well known name or designation. 120 Cal. 311. 
In Mechanics' liens. 94 Cal. 209. Pom. Rem., p. 676; 66 Cal. 134; 163 
Cal. 742; 162 Cal. 1, 397, 206, 630. 
Evidence may be introduced to aid in identifying. 168 Cal. 239. 



6. Judgments or Orders. 

Not necessary to allege facts showing jurisdiction of Court, officer or 
board in rendering, but only that such judgment or order was duly 
given or made. But must show Justice or inferior Court had jurisdic- 
tion. 165 Cal. 423; C.C.P. 456; iPom. Rem., p. 680; 162 Cal. 638; 138 
Cal. 230; 129 Cal. 57; but see 118 Cal. 680; 152 Cal. 746. 

7. Ordinances or Private Statutes. 
Sufficient merely to plead them by setting out their title, and day of 
passage, and Courts will then take judicial notice of their provisions. 
C.C.P. 459; 126 Cal. 229; 115 Cal. 447; 158 Cal. 494. 

46 



8. Ownership. 

Not necessary to plead cliain or source of title, but in i[^eneral terms 
that plaintiff is the owner in fee (or other estate) in the property. 
Pom. Rem. p. 687; 167 Cal. 59; 77 Cal. 192; 7?^ Cal. 299; 98 Cal. 660: 
117Cal.225. 



9. Use of Common Counts. 

Instead of alles^int^- the facts, the Common Counts may be used under 
Code in same cases and subject same rules as at Common Law : 
First: May be used on express contracts only in following instances: 

1. When performed and action is for money due — not when ex- 
ecutory. 

2. When partly pcrfcjrmed, has been abandoned, rescinded or ended 
by act of defendant. 20 Cal. App. 555 ; 19 Cal. App. 612 ; 135 Cal. 
525; 150 Cal. 376. 

3. When not performed in time or is void, but results in some bene- 
fit to defendant. 82 Cal. 250; 109 Cal. 430; 113 Cal. 97, 101; 
146 Cal. 667; 141 Cal. 308, 312; 166 Cal. 30, Z}>1>; 165 Cal. 497; 
164 Cal. 160; Pom. Rem. 437; 15 Cal. App. 555; 12 Cal. App. 
37, 228; 150 Cal. 376; 8 Cal. App. 35, 475. 

Second: They may be used in cases of implied contracts, — on waiver 
torts or otherwise. 

1. For goods, wares and merchandise sold and delivered. 114 Cal. 
34; 89 Cal. 178; 156 Cal. 711; 159 Cal. 182; 89 Cal. 178; 14 Cal. 
App. 538; 11 Cal. App. 190; 5 Cal. App. 326. 

2. For money had and received through fraud, mistake, or other 
cause. 123 Cal. 187; 164 Cal. 667;"l63 Cal. 256; 20 Cal. App. 
199, 555; 5 Cal. App. 696; 13 Cal. App. 444; 9 Cal. App. 396; 
2 Cal. App. Z77\ 8 Cal. App. 707; 102 Cal. 188; 76 Cal. j30. 

3. For labor performed, money expended, etc. 115 Cal. 711; 104 
Cal. 464; 103 Cal. 531; 150 Cal. 376; 4 Cal. App. 176; Pom. 
Rem. 436-438; 165 Cal. 557; 164 Cal. 429; 23 Cal. App. 216; 5 
Cal. App. 626. 



10. Contracts payable out of special Fund. 

Must allege funds have been received or party has put it out of his 
power to obtain funds, or failed to use diligence to obtain. 163 Cal. 690. 



11. Estoppel. 

Where plaintiff relies on estoppel as part cause of action, it must 

be plead. 156 Cal. 782 ; 19 Cal. App. 9 ; 16 Cal. App. 466; 134 Cal. 

641; 12 Cal. App. 116: 8 Stand. Proc. 686: 150 Cal. 510; 155 Cal. 

432. 

But need not plead estoppel relied upon to defeat defense or 

counterclaim. 161 Cal. 61; 14 Cal. App. 221; 153 Cal. 477; 148 

Cal. 660. 



12. Fraud or Deceit. 

Cannot be plead in general terms ; but complaint must allege with cer- 
tainty and particularity all the facts showing every element necessary 

47 



to show and establish the fraud or deceit, and that it damaged and in- 
jured the pLaintifif. 164 Cah 546; 83 CaL 7; 79 Cal. 528; 19 Cal. App. 
438; 105 Cal. 207; 8 Enc. PI. and Prac. 897; 9 Enc. PI. and Prac. 684. 
The elements showing fraud or deceit under different circumstances are 
found in following : 20 Cyc. 12, 98; 10 Stand. Proc. 52; C.C. Sec. 1572, 
1573, 1710. 3439; Pom. Rem. p. 678 note. 



13. Exception. 

When a party relies upon an exception to a general rule, — he must plead 
the facts showing his case is within the exception. 38 Cal. 450. 



14, Demand. 

When demand is necessary to fix liability of party, it must be made 
before action is commenced and alleged in complaint. 65 Cal. 243 ; 99 
Cal. 104; 119 Cal. 47. 



48 



LECTURE 12. 

Complaint — Joinder of Causes of Actions — Demand of Relief — 
Signing — Verification — Notice of Action. 

140. By "Joinder of Causes of Action"' is meant the statinp^ or alle£(ing in 
one complaint the facts constituting two or more separate and inde- 
pendent causes of action. 

1. This does not relate to stating one cause of action on different 
theories in separate counts. (See Sec. 131 Supra.) 

2. The causes joined must be separate and independent, one from 
the other. 

3. Joining causes in one complaint, is permissive, not compulsory. 
165 Cal. 543; 1 C.J. 1055; 23 Cyc. 402-434. 



141. Several independent causes of action may be joined in one complaint 
in conformity with the following rules : 

1. They must be separately stated — one cause in each count, and 
each count must state within itself all facts necessary to a com- 
plete cause of action. 46 Cal. 169; 14 Cal. 147; 41 Cal. 17: 106 
Cal. 570. 

2. All the causes joined must affect all the parties to the action. 59 
Cal. 293 ; 109 Cal. 209; 61 Cal. 153. 

3. The causes so joined must not require dift'erent places of trial. 

4. All the causes joined must arise out of and belong to only one of 
the eight classes of actions mentioned in Sec. 427 C.C.P.. except 
as therein provided. C.C.P. 427; Pom. Rem. 332-335, 373-399, 466. 

5. Several classes cannot be joined by charge of conspiracv. 166 
Cal. 121. 



142. Under rule 4 above, all causes of action arising out of any one of the 
8 classes mentioned may be joined, but causes of one class cannot be 
joined with another class, thus: (166 Cal. 121 ; 109 Cal. 209) 

1. All causes arising out of contracts, express or implied, mav be 
joined. 137 Cal. 649 ; 104 Cal. 640. 

(a) This applies to implied contracts arising from wai\-er of 
tort. 96 Cal. 401 ; 

(b) Also contracts directlv with party c^r assigned to him. Pom. 
Rem. 386, 387, 394, 395; 73 Cal. 190. 

2. Claims to recover specific real property and damages thereto, or 
for waste committed thereon, and the rents and profits of the 
same. 164 Cal. 607: Pom. Rem. 388: 3 Cal. App. 734: 15 Cal. 145; 
72 Cal. 329 ; 65 Cal. 162. 

3. Claims to recover specific personal propertv and damages for 
withholding thereof. 109 Cal. 209. 

4. Claims against a trustee by virtue of a contract or bv operation 
of law. 140 Cal. 141. 

5. Injuries to character, and with this may be joined malicious ar- 
rest or prosecution, but not injury to property. 105 Cal. 689. 

6. Injuries to person, and with this may be joined malicious arrest 
.or prosecution, but not injury to propertv. 100 Cal. 374: 105 Cal. 
680. 

1. Under this claims of husband and wife for her injuries may 
be joined. 167 Cal. 786; Pom. Rem. 390. 

49 



7. Injuries to ])n»i)crt\' — this means real or personal. Pcjm. Rem. 
389. 391 ; 32 Cal. 590; 98 Cal. 338 ; 146 Cal. 55 ; 80 Cal. 324. 

8. Claims arising" out of same transaction or connected with same 
subject of action, and not included within one of foregoing pro- 
visions. 17 Cal. 498; 21 Cal. App. 279; 65 Cal. 405; 111 Cal. 677. 

(a) 'J'his transaction is a series of acts, negotiations or conduct 
of parties giving rise to two or more rights and wrongs to 
each. lOO'Cal.34: 102N.W. 926. 

(b) Connection with same subject, must be immediate and di- 
rect, and such as the parties must have contemplated or 
foreseen. Pom. Rem. 357-372. 

(c) Cause of action for injury to person and proj^erty by same 
tort may be plead in one statement. 

C.C.P. 427; 166 Cal. 121 ; 90 Cal. 7S\ 100 Cal. 372; 96 Cal. 
400; 1 C.J. 1073-1105. 



143. Under rule 1 above, each cause of action must be set out in a separate 
count or statement : 

1. Each count must contain allegations of all facts essential to cause, 
directly or by reference to another count. 54 Cal. 262 ; 105 Cal. 
434. 

2. Each count begins "PlaintiiT, for a first cause of action (or second, 
etc.) complains and alleges." 

3. Only one demand for relief is made covering all causes alleged — 
not separate pravers for each. 4 Enc. PI. and Prac. 620, 622; 31 
Cyc. 112, 118. 



144. The "demand for relief is the closing paragraph in a complaint where- 
in plaintiff states the relief he expects to obtain in the action. 37 Cal. 
304. 

1. Its form is "Wherefore plaintiff demands judgment against the 
defendant for,- — etc." 

2. Plaintiff must then specify every item of relief he seeks. 

3. If for money, the amount of each item, also interest, costs, etc. 

4. If other relief, must specify each and every item, kinds, nature, 
etc. 

5. In Equity cases, he may ask for general relief — "and for such 
other relief as may seem equitable to the Court." 132 Cal. 691. 

6. In default cases, the demand limits plaintiff's recovery. 117 Cal. 
219; 125 Cal. 312. 

7. In contested cases, it does not limit, but court may grant any re- 
lief justified by the facts alleged in complaint. 116 Cal. 377; 
C.C.P. 426, 580; 166 Cal. 441; 130 Cal. 258; Pom. Rem. 471; 164 
Cal. 287; 158 Cal. 474; 16 Enc. PI. and Prac. 775; 71 Cal. 37; 146 
Cal. 416; 141 Cal. 360; 125 Cal. 556; 105 Cal. 447; 99 Cal. 68; 154 
Cal. 303: 8 Cal. App. 702, 769; 168 Cal. 677. 



145. The complaint must then be signed by plaintiff in person or by his at- 
torney, duly authorized to practice law, except in Justice and Police 
Courts, by any agent, or not at all. C.C.P. 446, 842; 8 Cal. 570; 14 Cal. 
App. 307 ; 68 Cal. 410. Signature may be signed, stamped or printed. 
49 Cal. 413. 

SO 



1. Attorney is presumed to lia\e autlifjrity to ai)i)ear until contrary 
shown. 

2. Thereafter all pleadins^s and notices must be served on attorney — 
not party. 

3. The attorney alone has power to dismiss action, stipulate or take 
any proceeding's or siijn papers therein. C.C.P. 446, 1015, 1014, 
465, 283, 285; 167 Cal."228, 342; 128 Cal. 560; 129 Cal. 200. 

146. In actions a complaint need not be, but except in justice Courts — may 
be verified. C.C.P. 446, 851. 

In many special proceedings, even in Justice Court, it must be verified. 
In Police Courts for violation of ordinances must be verified. 
C.C.P. 929, 1166, 527, 815, 1069, 1086, 1103, 1115, 1229; 22 Enc. PI. and 
Prac. 1023;40Cyc. 193. 



147. Verification is an affidavit stating- that the allegations of the pleadings 
are true, and must be made, 

1. By plaintiff in person, or one of them, or his agent. 

2. By attorney or other person having knowledge of facts — reasons 
for his making it being stated. 

3. When corporation is party, by any officer. 3 Cal. App. 94. 

4. Complaint in action by State, County, or its officers — need not be 
verified, but is deemed' so. C.C.P. 446; Pom. Rem. p. 669 note; 31 
Cvc. 526 ; 22 Enc. PI. and Prac. 1023. 



148. When complaint is filed in actions affecting title, or right of possession 
of real property, — Notice of Action — Lis Pendens — should be filed with 
County Recorder. 

1. Quiet title, ejectment, partition, condemnation, foreclosure liens. 

2. Notice must be signed by plaintiff, or his attorney, and must con- 
tain 

(a) Names of parties to action. 

(b) Title of court and cause. 

(c) Object of action. 

(d) Description of lands affected. 

3. Object of notice is to bind subsequent purchasers by judgment 
obtained therein. 141 Cal. 656. 

4. If not filed, no subsequent purchaser or encumbrancer is bound 
by judgment. C.C.P. 409, 749, 755; 156 Cal. 191; 145 Cal. 578; 
147 Cal. 746; 141 Cal. 656; 25 Cyc. 1465. 



51 



LECTURE 13. 
Acquiring jurisdiction over Defendant — Appearance — Personal Service of 

Summons. 
150. Jurisdiction over defendant is accjuired in an action in two ways: 

1. By his voluntary appearance, for all purposes, or, 164 Cal. 327; 
7 Cal. App. 649. 

2. Bv issuance and service of summons on defendant for certain pur- 
poses. C.C.P. 406, 416, 841; 166 Cal. 345, 707; 10 Cal. App. 690; 
141 Cal. 657; 117 Cal. 577. 

3. Person named as party is not l)efore the Court, until he appears 
or is served. 116 Cal. 448: 120 Cal. 46; 125 Cal. 201 ; 19 Enc. PI. 
and Prac. 572. 



151. The voluntary appearance of defendant may be of two kinds: 

1. Special appearance — limited by its terms to some specific purpose 

(a) To obtain extension of time to plead and for general ap- 
pearance, except under some circumstances. 13 Cal. App. 
65; 113 Cal. 305; 75 Cal. 239; 147 Cal. 605; 132 Cal. 81; 136 
Cal. 556. 

(b) To object in some form to jurisdiction of Court over his 
person or to manner of service of summons upon him. 158 
Cal. 537 ; 75 Cal. 239 ; 44 Cal. 630 ; 47 Cal. 614. 

(c) Not necessary to object to jurisdiction of Court over subject 
matter, — general appearance does not waive. 92 Cal. 52 ; 
Sec. 55 ante; 60 Cal. 296; 164 Cal. 532; 156 Cal. 82; 75 Cal. 
237: 126 Cal. 418. 

2. General appearance — by which he waives summons and submits 
to jurisdiction of Court except as to subject matter. 

(a) When he serves and files a Notice signed by himself or at- 
torney that he appears. 153 Cal. 692; 44 Cal. 157; 27 Cal. 
295 ; 141 Cal. 8. 

(b) When he serves and files some pleading asking some relief 
or invoking the power of the Court on some question af- 
fecting the merits of the action. 2 Cal. App. 436 ; 144 Cal. 
30; 168 Cal. 761; 135 Cal. 52; 125 Cal. 388; 126 Cal. 418; 
122 Cal. 448. 

(c) Appearance more than three years after commencement of 
action when no summons issued or returned does not pre- 
vent dismissal unless waived before. 137 Cal. 270; 147 Cal. 
605; 132 Cal. 81; C.C.P. 1014, 581a; 164 Cal. 327; 156 Cal. 
82; 20 Cal. App. 117; 19 Cal. App. 194; 14 Cal. App. 363; 13 
Cal. App. 4, 65. 395; 10 Cal. App. 690; 151 Cal. 98; 117 Cal. 
^:^77\ 2 Stand. Proc. 484; 3 Cvc. 500; 2 Enc. PI. and Prac. 588. 



152. A summons is a wTit issued out of a Court by the Clerk thereof and 
under its seal, or if no Clerk, by the Judge thereof. 

1. Must be directed to defendant. 

2. Contain names of parties. Court and County in which action is 
brought. 44 Cal. 630; 120 Cal. 512._ 

3. Direct defendant to appear within time fixed by law. 

(a) Superior 'Court — 10 days if served in County — 30 days if 
elsewhere. 

(b) Justice Court — -5 days if served in township — 10 days else- 
where in County — 20 days if out of County. 

52 



4. Notice if defendant fails to appear, plaintiff will take judgment 
for money demanded in c(im]daint. or will applv to Court for anv 
other relief demanded. 122 Cal. 271 ; 133 Cal. 417. 

5. Must be signed by Clerk or Judge, and seal of Court attached if 
it has one. 76 Cal. 610; 16 Cal. 202; 32 Pac. 651 ; 20 L.R.A. 424; 
C.C.P. 407, 844, 845; 20 Cal. App. 394; 107 Cal. 117; 32 Cyc. 412. 



153. A summons is issued upnn oral a])plicati()n of ])laintiff or his attorney. 

1. At any time within one year after complaint is filed. 53 Cal. 245. 

2. If several defendants residing in different counties, one summons 
for each may be issued at same time. 

3. If summons be returned unserved, or is lost, any number of alias 
summons may be issued by Clerk within the year. Court may or- 
der summons withdrawn or new summons issued after vear. 159 
Cal. 729 : 137 Cal. 651 ; 141 Cal. 658 ; 148 Cal. 669. 

4. If no summons is issued within vear. action must be dismissed. 
C.C.P. 406, 408, 840, 846, 847, 581a. 



154. The summons may be served upon defendant in two \vays — 

1. Personal — bv delivery to him in person within the State where 
issued. 162 Cal. 638; 12 Cal. App. 448. 

2. Constructive — by publication and mailing, or by personal service 
out of State in manner explained in Lecture 14. C.C.P. 411. 412. 
848; 19 Enc. PI. and Prac. 603. 



155. The summons is personally served by delivering a copy thereof, and 
showing the original wdien demanded, and a copv of the complaint filed, 
as follows : 75 Cal. 237 ; 99 Cal. 204 ; 59 Cal. 471. ' 

1. If domestic corporation — to President or other head, Vice Presi- 
dent, Secretary, Assistant Secretar}^ Cashier, or managing agent. 

2. If foreign corporation doing business or having agent in this 
State — to such agent, cashier or secretary. C.C. 405 ; 23 Cal. App. 
560; 12 Cal. App. 445; 139 Cal. 175. 

3. If a minor under 14 years old — to such minor, and also his father, 
mother, or guardian, or if none here, to any person having care 
or control, or employing him. 63 Cal. 554; 80 Cal. 491 : 51 Cal. 
615; 99 Cal. 336. 

4. If incompetent person — to such person and also to his guardian 
if one. 134 Cal. 247. 

5. If County, City, or Town — to president or other head of legisla- 
tive department. 

6. In all other cases — to defendant personally. 

7. When summons issued out of Justice Court is to be served out 
of County, there must be attached to it certificate of Countv Clerk 
that it was issued by an acting Justice of Peace. 

(a) Can be served out of Countv only in certain cases. 165 Cal. 
423; 156 Cal. 82; C.C.P. 411, 848, 849; 19 Enc. PI. and Prac. 
613, 651, 652-694. 



156. The summons may be so personally served by following persons: 
1. If issued out of Superior Court — 

53 



(a) Bv Sheriff or his deputy of the County where defendant is 
found. 34 Cal. 391. 

(b) By any person over 18 vears old and not a party to the ac- 
tion. 110 Cal. 27. 

(c) If Sheriff disqualified or absent, Coroner of County acts for 
him. 

If issued out of Justice Court — 

(a) By Sheriff or his deputy of County where defendant is 
found. 

(b) By Constable of any township in the County where defen- 
dant is found. Pol.'C. 4187; 15 Cal. 296. 

(c) By any person over 18 vears old and not a party to the ac- 
tion. C.C.P. 410, 849; 19 Enc. PI. and Prac. 577-597. 



157. After service of summons, proof thereof and return is made — 

1. If by an officer, — his certificate showing facts of service and signed 
by him is endorsed on summons. 162 Cal. 638: 104 Cal. 487; 34 
Cal. 391 ; 86 Cal. 395. 

2. If by an individual — his affidavit showing his qualifications to make 
service, and facts of service, is endorsed upon or attached to sum- 
mons. 88 Cal. 581 ; 95 Cal. 652; 119 Cal. 452; 66 Cal. 42. 

3. Or written admission by defendant. 11 Cal. 307; 35 Cal. 528. 

4. Summons with proof of service thus endorsed, is returned to Clerk 
or Judge issuing it, for filing. C.C.P. 415 ; 126 Cal. 57 ; 86 Cal. 395 ; 
93 Cal. 600; 99 Cal. 336; 19 Enc. PI. and Prac. 697; 18 id 901. 



158. Court acquires jurisdiction over defendant and thing involved, when 
Court has jurisdiction over cause — 

1. At date of personal service, if made and summons returned in 
three years after date action is commenced. 33 Cal. 678; Sec. 
282 post. 

2. Or at date of general appearance of defendant in action. C.C.P. 
416, 581a: 127 Cal. 211 ; 133 Cal. 385 : 41 Cal. 242; Sec. 151 (2) (c) 
ante. 



159. 



Whenever any complaint, cross-complaint, complaint in intervention, 
answer praying affirmative relief, or amendments thereto, or supple- 
mental complaint, have been filed, before a party affected thereby has 
appeared in the action, summons must be issued and served therewith, 
as in original complaint, unless partv appears thereto and waives sum- 
mons. C.C.P. 387, 442; 75 Cal. 237; 156 Cal. 446; 94 Cal. 86; 27 Cal. 
300: 19 Enc. PI. and Prac. 573. 



160. After service of summons, and before or after defendant has appeared, 
or after defendant's voluntary appearance without service of summons, 
Court acquires jurisdiction to hear and determine motions or proceed- 
ings of which notice is required to be given, by service of proper notice 
or pleadings upon adverse party, as follows : 

1. On party himself when he has not appeared or appears in person. 

2. On the party's attorney when one appears or gives notice of ap- 
pearance for him ; — 

54 



(a) By delivery copy to part}' or attorney in person, or 

(b) If on attorney, by leaving it at his office or residence as 
prescribed by Code. 

(c) If on partv. bv leaving it at his residence, as provided. 4 
Cal. App. 48. ' 

(d) In either case, if office or residence unknown, or out of 
State, leave with County Clerk. 

(e) May be served on either by mail when parties reside or 
have offices in different places, between which there is reg- 
ular communication bv mail. 21 Cal. App. 317; 18 Cal. 
App. 128; 76 Cal. 619; 94 Cal. 640: 106 Cal. 483. 

(f) Affidavit must be attached showing service in such cases 
as Code requires. 63 Cal. 121; 24' Cal. App. 729; C.C.P. 
1003-1019; Sec. 25 ante. 

(g) Service on Sunday or legal holiday valid. 112 Cal. 603; 19 
Enc. PI. and Prac. 694. 



161. Copies of all summons, writs, pleadings, or other papers, may be trans- 
mitted to officer or person by whom service is to be made by mail or 
telegraph, or personally delivered, — 

1. Such copies should be precise reproduction of original, except 
Court seals. 

2. Where copies are not exact, service is not void, but merelv defec- 
tive. 73 Cal. 187: 

(a) Party's only remedy is to move to set aside for that reason. 

(b) If he does not make such motion — waives defect. 

3. Failure to deliver a substantial copy is no service at all. C.C.P.. 
1017. 



SS 



LECTURE 14. 

Acquiring Jurisdiction by Constructive Service. 

164. By "Constructive Service" is meant some method of service of sum- 
mons other than personal service in the State, and is allowable only in 
following actions or proceedings : 

1. Those affecting or disposing of property in the state. 75 Cal. 
219; 87 Cal. 147. 

2. Those affecting the status of a party thereto. 

3. Those seeking to recover a personal claim and enforce it upon 
propertv seized by some process in the action — as attachment, 
receiver, etc. 12 Cal. App. 189; 10 Cal. App. 690; 112 Cal. 101; 
115 Cal. 275; 24 Cal. App. 191. 

4. But not in actions to recover on a personal claim alone. 

5. The property or status must be affected by action or proceedings 
itself, or be seized bv process before judgment or publication of 
summons. 15 Cal. App. 446; 145 Cal. 583; 144 Cal. 487, 785. 

6. In Probate or other special proceedings notices are posted or pub- 
lished as provided in Code. C.C.P."l908; 164 Cal. 504; 19 Cal. 
App. 481; 13 Cal. App. 715; 19 Enc. PI. and Prac. 609, 620, 632. 



165. If any such action is against a foreign corporation doing business in 
this State. 2 Cal. App. 582. 

1. If it has designated an agent with Secretary of State, service is 
on such agent. C.C. 405; 12 Cal. App. 448; 66 Cal. 311. 

2. If no designation, and no business agent, cashier, or Secretary 
within State,— service is made on Secretary of State. 145 Cal. 
601. 

3. In such cases no order of publication is made. C.C. P. 412; C.C. 
405; 13 Cal. App. 59; 12 Cal. App. 445; 149 Cal. 482; 19 Enc. PL 
and Prac. 671. 



166. In all other such actions, constructive service can be had only w^hen 
made to appear that defendant on whom service is to be had; either 

1. Resides out of the State, or (144 Cal. 415.) 

2. Has departed from the State ; or 

3. Cannot, after due diligence, be found within the State; or (15 Cal. 
App. 446.) 

4. Conceals himself to avoid service of summons ; or 

5. Is a foreign corporation, not doing business, and having no busi- 
ness agent, cashier, or secretary, within the State. It must also 
appear that either, 

6. A cause of action exists against such defendant ; or 

7. Such defendant is a necessary or proper party to the action ; or 

8. Is an action relating to real or personal property in this State, in 
which such defendant has an interest and seeking to exclude him 
therefrom. 16 Cal. App. 90. 

9. In either such cases, service can be made only after an order has 
been obtained authorizing the service. 65 Cal. 396; C.C. P. 412; 
165 Cal. 24; 19 Cal. App." 793. 



167. Such order is made by the Court, or Judge thereof, at Chambers, on 
exparte application of plaintiff, accompanied by (Sec. 48 ante). 

56 



1. Affidavit of facts showing- one or more items 1 to 5 in above Sec- 
tion 166; 163 Cal. 726; 160 Cal. 372; 15 Cal. App. 446; 151 Cal. 
509; 154 Cal. 307, 85; 115 Cal. 689; 99 Cal. 324. 

2. Also affidavit or verified complaint showing one or more items 
6 to 8 thereof. 159 Cal. 34; 138 Cal. 445; 76 Cal. 611; 119 Cal. 
283; 70 Cal. 431. 

3. If item 3 be shown, affidavit must also show, 

(a) Certificate of residence not filed as required by Sec. 1163 
Civil Code. 

(b) Or that certificate was filed, and present certificate of sherifif 
that defendant could not be found at place designated. 

4. In all cases affidavit must show the newspaper most likely to give 
defendant notice. 

5. Affidavit must also give defendant's place of residence and ad- 
dress when known, or show it is not known. 137 Cal. 420; 26 
Cal. 149. 

6. Affidavit is made by plaintiff or any person in his behalf. 

7. When order is signed, it with affidavit and sheriff's certificate 
must be filed with Clerk, but not summons. 119 Cal. 301; 137 
Cal. 651, 420. 

8. The affidavit need not show seizure of property in actions on 
personal claim ; that fact is shown by records in action. 144 Cal. 
785; 72 Cal. 69; C.C.P. 412; 165 Cal. 24. 



168. The order of service so obtained must contain — 

1. Title of court and cause. 

2. Recite application is made on affidavits, verified complaint, etc. 

3. Find required facts appear to satisfaction of court therefrom. 26 
Cal. 149. 

4. Order that defendant be served b}^ publication of summons. 

5. Designate newspaper in which publication be made. 23 Cal. 86. 

6. Fix period time publication is to be made therein 

(a) If on one or more first three grounds, must not be less than 
two months. 144 Cal. 423; 133 Cal. 459. 

(b) In all other cases, a reasonable time, at least once a week. 

7. Directing mailing copy summons and complaint to defendant's 
residence when known. 72 Cal. 65 ; C.C.P. 413. 

8. Cannot be made before summons is issued. 20 Cal. 81. 



169. After such order has thus been signed and filed, either one of two 
courses must be pursued. 

1. Copy of summons must be published in the newspaper and for the 
times prescribed in order, and copy of summons and complaint, 
or amended complaint mailed when directed, or (116 Cal. 91; 78 
Cal. 34.) 

2. A copy of summons and complaint or amendment must be per- 
sonally served on defendant out of State bv some competent per- 
son. 77 Cal. 510; 144 Cal. 487. 

3. This personal service out of State merely takes place of publica- 
tion and mailing, only after such order is made. C.C.P. 413. 



170. Service is complete and court acquires jurisdiction over defendant, and 
over property directly affected by action or seized by process in the 
action, 

57 



1. Upon expiraticMi of period of pul)lication fixed in order, whether 
summons is published, or personally served out of state. 133 Cal. 
459; 116 Cal. 93. 

2. When such period expires and summons returned and filed within 
three years after commencement of action, except when defend- 
ant conceals himself to avoid service. Sec. 282 post; C.C.P. 416, 
581a. 



171. After service of summons, as above explained, i)roof thereof must be 
attached to or endorsed upon original summons, either 

1. Proper affidavits showing publication and mailing; 

(a) AfBdavit publication, by publisher of newspaper. 119 Cal. 
283; 101 Cal. 571; 103 "Cal. 536. 

(b) Affidavit mailing, by person designated in order to do 
mailing. 3 Cal. App. 151; 72 Cal. 65; 116 Cal. 91; 33 Cal. 
505. 

2. Or affidavit of person personally serving out of State as in other 
cases. 145 Cal. 601. 

3. Or admission of service signed by defendant. 

4. The summons with such proof of service is then filed with the 
Clerk of Court, or with Justice. C.C.P. 415; 99 Cal. 336. 



58 



LECTURE 15. 
Defendant's Objections to Complaint. 

174. Within the period of time specified in the summons defendant may 

1. Appear specially to set aside service of summons. (Sec. 131 
ante), or 

2. Serve and file some pleading to the complaint. 

3. This time may be extended by stipulation, or order of Court not 
exceeding 30 days. C.C.P. 283. 1054; 112 Cal. 295. 609; 134 Cal. 
49; 122 Cal. 402; 71 Cal. 583. 



175. A special appearance to set aside service of summons is made 

1. By motion on written notice stating grounds, and also that de- 
fendant appears for that special purpose. 117 Cal. 577. 

2. Motion is made on affidavit showing defect, unless shown by the 
return. 97 Cal. 56. 

3. It does not extend time to plead — extension of time mav be ob- 
tained. 65 Cal. 97; 76 Cal. 259; 116 Cal. 138. 

4. If granted, no further appearance need be made until further 
service. 

5. If denied, defendant must plead to complaint, or he will be in de- 
fault. 78 Cal. 225; C.C.P. 1054; 11 Cal. App. 215; 44 Cal. 630; 50 
Cal. 185; 136 Cal. 556; 47 Cal. 614; 45 Cal. 49; 53 Cal. 245. 



176. Two kinds of defects may exist in a complaint. 

1. Those appearing on its face, and objections thereto raise ques- 
tions of law. 

2. Those not appearing on its face and objections thereto raise ques- 
tions of fact. C.C.P. 430, 433; 151 Cal. 13; 146 Cal. 182. 



177. Defects appearing on face of complaint may be raised by defendant by 
the following pleadings ; 

1. Motion to strike out. 

2. Motion for Judgment on Pleadings. 

3. Demurrer thereto. C.C.P. 430, 453. 



178. Motion to strike out must be made on written notice served and filed 
with demurrer or answer, but not after, 

1. The whole complaint, on ground it is sham, or 

(a) Formerly because plaintiff refused to testify but not now. 
78 Cal. 373; 84 Cal. 533; 152 Cal. 357. 

(b) Not because Judge is made a party. 136 Cal. 682. 

2. Parts of complaint, on ground such part is irrelevant or redun- 
dant matter. 96 Cal. 47 ; 141 Cal. 591 ; 109 Cal. 130. 

3. Notice of such motion must contain 

(a) Title of court and cause. 

(b) What motion will be made and time and place of making. 

(c) Specify all, or the particular parts to be stricken out. 33 
Cal. 171. 

(d) State upon what grounds motion will be made. 

(e) Specify what papers will be used. 

59 



(f) Signed bv defendant or his attorney — no affidavit or evi- 
dence used. Sec. 24 ante; C.C.P. 453, 1005, 1010; Pom. 
Rem. 445, 446 notes: 65 Cal. 342; 8 Cal. App. 310; 20 Enc. 
PI. and Prac. 1, 986; 31 Cvc. 615-642. 



179. Motion for Judtiment on pleadings may be made at any time on or be- 
fore trial of action. 

1. Can be made only on ground complaint does not state facts suf- 
ficient to constitute a cause of action. 

2. Has the effect of general demurrer, except judgment of dismissal 
is entered unless plaintiff obtains leave to amend l^efore it is 
granted. 68 Cal. 212. 

3. If before trial, can be made only on notice similar in form to no- 
tice of motion to strike out ; if at trial, mav be made without notice 
before trial begins. Sec. 24 ante; 91 Cal. 373: 117 Cal. 482; 
143 Pac. 322; 11 Enc. PI. and Prac. 1030-1047; 31 Cyc. 606. 



180. A demurrer is a pleading raising defects appearing on the face of a 
complaint or answer, and creates issues of law only. 46 Cal. 7. 

1. In Superior Court must be in writing signed by party or attorney, 
served and filed. 

2. Set down on law calendar, and heard without notice. 

3. After ruling, notice thereof must be given unless w^aived. 63 Cal. 
437; 77 Cal 151. 

4. In Justice Court, may be in writing or oral — entered on docket 
by Justice or Clerk. 

5. Set for hearing and notice thereof given. 

6. After ruling, no notice thereof given. 109 Cal. 616. 

7. In either Court, can be filed and made to complaint only before 
or with answer. 

8. If complaint is in several counts, must be made to each. 159 Cal. 
742; 128 Cal. 674. 

9. Admits as true all material allegations of fact in complaint, but 
not conclusions of law. 23 Cal. App. 766; 112 Cal. 476; 146 Cal. 
604; C.C.P. 430, 431. 476, 850, 854; Pom. Rem. 468, 487 note 1 ; 6 
Enc. PI. and Prac. 296; 6 Stand. Proc. 845. 

10. Not proper to strike out demurrer to complaint because not filed 
in time. 98 Cal. 415. 



181. The demurrer mav be made on one or more following grounds which 
must be specified therein. 25 Cal. 89; C.C.P. 430; Pom. Rem. 442-446, 
p. 821 notes. 

1. Court has no jurisdiction of person of defendant or the subject of 
action. 

2. Plaintiff has not legal capacity to sue. 

(a) No capacity must expressly appear — not that it does not ap- 
pear. 166 Cal. 345; 146 Cal. 179; 123 Cal. 238; 60 Cal. 405. 

(b) Distinguished from right to maintain action. 128 Cal. 195. 

3. Another action pending between same parties for same cause. 

4. Defect or misjoinder of parties plaintiff or defendant. 126 Cal. 77. 

(a) Defect means too few — nonjoinder. 

(b) Misjoinder means too many — some one should not be 
joined. 138 Cal. 716. 

60 



(c) ]\Iust specify the partv who should, or shoukl not, be joined. 
Pom. Rem. '123-133, 188-194; 88 Cal. 292; 118 Cal. 413; 125 
Cal. 549. 

5. Several causes of action have been improi)erly united, or not sep- 
arately stated. 166 Cal. 127. 

(a) First occurs when several causes are separately stated but 
improperly joined. 100 Cal. 372. 

(b) Second occurs when several causes are stated in one count. 
Pom. Rem. 336-345. p. 508 note. 

(c) IVlust specify wherein defect occurs. 

6. Complaint does not state facts sufficient to constitute a cause of 
action. Raises statute frauds, 156 Cal. 245; 154 Cal. 456; raises 
Laches, 156 Cal. 646. 

7. Complaint is ambiguous, or unintelligible, or uncertain. 22 Cal. 
App. 215. 

(a) Each a separate ground, referring to a distinct defect. 87 
Cal. 453, 245. 

(b) In each ground, must particularly specifv wherein defect 
arises. 126 Cal. 77; 131 Cal. 101. 

(c) Ambiguous' — means complaint expresses a double sense. 
39 Cal. 618. 

(d) Unintelligible — means it expresses no sense. 61 Cal. 160. ' 

(e) Uncertain — means cannot determine what sense it expresses. 
124 Cal. 83; 82 Cal. 212; 14 Cal. App. 544; 11 Cal. App. 190; 
105 Cal. 689; 123 Cal. 87. 

8. That cause of action is barred by Statute of Limitation. 

(a) Must specify the section of Code barring action. 119 Cal. 
528; 162 Cal. 178; 158 Cal. 690; 147 Cal. 245; 156 Cal. 643; 
154 Cal. 456; 10 Cal. App. 741; 18 Cal. App. 107. 

9. Demurrers are classified in use as 
1. General — w'hen on 6th ground and 

(a) L'sed when there is absence of essential allegation. 
2. Special — w'hen on any of the other grounds specified. 

(b) Used when the allegations of fact are defectively 
stated or barred. 166^ Cal. 423; 163 Cal. 637; 108 Cal.' 
294; 105 Cal. 41 ; 110 Cal. 169; 131 Cal. 101 ; 68 Cal. 57. 

10. No demurrer to prayer of complaint. 38 Cal. 230. 

182. ^^'hen any defects exist as a fact in a complaint but do not ex'pressly 
appear on its face, they can be raised onlv bv answer. C.C.P. 433; 166 
Cal. 345; 146 Cal. 179. 

Defects so appearing cannot be raised by answer. 45 Cal. 270. 

183. If no demurrer or motion to strike out be filed, all defects appearing on 
its face, or if not so appearing and they are not raised bv answer, are 
waived, except, [77 Cal. 390; 120 Cal. 463; 145 Cal. 181.) ' 

1. Jurisdiction of Court over subject matter, and 

2. Complaint does not state facts sufficient to constitute a cause of 
action. 60 Cal. 441 ; 112 Cal. 174: 148 Cal. 374; 147 Cal. 694; 120 
Cal. 63. 

3. These mav be raised bv anv means, at any stage of case, in trial 
or appellate Courts. 16 Cal. App. 332 ; 139 Cah 55 ; 147 Cal. 694. 

4. Statute of Limitation may be plead by answer and not demurrer, 
even when appearing on face of complaint. 158 Cal. 697. 

C.C.P. 434; Pom. Rem. 444 notes; 160 Cal. 611; 158 Cal. 226; 31 
Cyc. 759. 

61 



5. Defects in complaint cured bv answer. Pom. Kem. 470; 21 Cal. 
App. 282; 18 Cal. App. 147; '99 Cal. 259; 123 Cal. 62; 110 Cal. 
169; 113 Cal. 536; 12 Cal. 758; 13 Cal. 346.. 

6. Defects in complaint cured by Judgment where case is tried on 
theory that proper issue was raised. 156 Cal. 746; 19 Cal. App. 
247; 16 Cal. App. 154; 15 Cal. App. 437; 134 Cal. 139; 103 Cal. 53; 
145 Cal. 495 ; 31 Cyc. 763 ; 148 Cal. 663. 

7. If demurrer be sustained without leave to amend judgment mav be 
entered for defendant. 58 Cal. 8; 148 Cal. 511. 

8. If demnrrer be overruled, defendant may be granted leave to 
answer and if he fails to do so, judgment may be entered as in 
defaults. 58 Cal. 95 ; 65 Cal. 387 ; 86 Cal. 197 ; 95 Cal. 364. In Justice 
Court, 135 Cal. 4. 

9. Stipulation that demurrer may be overruled does not waive the 
defects raised therebv. 120 Cal. 63; 149 Cal. 195. 



62 



LECTURE 16. 
Defendant's Answer. 

186. /■ ^ answer is a pleading by defendant alleging facts in opposition to 
the claims of plaintiff set forth in the complaint; it raises issues of fact, 
and its contents are divided into two classes: 

1. Defenses. 

2. Counter-claims. 

3. In either Court, must be filed in time specified in summons ; or 

4. If demurrer filed in Superior Court, answer filed with it or in 10 
days after notice overruling. 77 Cal. 151. 

(a) Time may be extended by stipulation or order Court not 
exceeding 30 days. 136 Cal. 556. 

5. If demurrer filed in Justice Court, answer filed in time allowed 
by Court not exceeding 2 days. 109 Cal. 616; C.C.P. 437, 437a, 
476, 855, 858, 1054; Pom. Rem. 472-482; 2 Stand. Proc. 1; 1 Enc. 
PI. and Prac. 777 . 



187. A defense is the facts alleged in an answer which merely defeat the 
plaintiff's claims, and is divided into two kinds : 

1. Defense by Denial. 

2. Defense by New Matter. 

Pom. Rem. 484; 10 Cal. 22; 21 Cal. 47. 

188. The defendant may plead in his answer all the defenses he may have : 

1. They may be legal or equitable. 150 Cal. 263, 606. 

2. May be plead in actions at law or in Equity. 

3. May be inconsistent, and hypothetical in character. 121 Cal. 414. 

4. Each must be separately stated, and be complete within self. 

5. If complaint contains several causes of action, each defense must 
refer to the cause to which it relates. 

6. The defense by denial should be first plead, then defense by new 
matter and then any counter-claims desired. 

7. The answer should begin in this form : 

"Defendant answering the complaint (or the first or second 
or third cause of action in the complaint) alleges (or as a 
first, second or third, defense thereto alleges)." 

C.C.P. 441 ; Pom. Rem. 407-499, 591-601 ; 21 Cal. App. 274; 7 Cal. 

App. 150; 8 Cal. App. 74; 22 Cal. 677; 114 Cal. 620; 115 Cal. 308. 



189. A defense by denial is those allegations in an answer which controvert 
or traverse one or more allegations of the complaint ; and there are two 
kinds of denials : 

1. General Denial. 

2. Specific Denial. 

3. May be negative in form, or the afifirmative allegation of fact con- 
trary to allegation of complaint. 167 Cal. 370; 159 Cal. 502. 

4. If complaint be not verified either denial may be used. 

5. If complaint be verified, only specific denial can be used. 128 Cal. 
327; C.C.P. 437; Pom. Rem.' 501-561 ; 515-527; 21 Cal. 430; 95 Cal. 
545; 114 Cal. 511 ; 69 Cal. 86; 104 Cal. 248; 138 Cal. 47. 

190. A General Denial is one that controverts or traverses two or more of 
the allegations of a complaint collectively thus : 

63 



"Defendant denies generally and specifically each and all the allega- 
tions 

1. of the Complaint ; or 

2. of the first (or second, or third) cause of action ]. '^^ -. com- 
plaint ; or 4'J >'' 

3. of paragraph I (or II, or III) of the complaint. " * 

C.C.P. 437: Pom. Rem. 504, 533-561 ; 22 Cal. App. 3c<o .. 640; 76 

Cal. 210; 117 Cal. 254; 145 Cal. 284. 



191. A Specific Denial is one that controverts or traverses each allegation 
of the complaint separately, and may be in form either 

1. Direct or positive — thus: "Defendant denies, etc." 

2. On information and belief — "On information and belief defendant 
denies, etc." 

3. Want of information or belief — "Defendant has no information or 
belief sufficient to enable him to answer thereto, and on that 
ground denies, etc." 121 Cal. 270. 

4. When fact alleged in complaint is, or is presumed to be, within 
defendant's knowledge, he must answer positively. 1 Enc. PI. 
and Prac. 808-815; Pom. Rem. 506, 507, 531, 532; 165 Cal. 383; 
159 Cal. 742; 23 Cal. App. 188, 736; 24 Cal. App. 592; 15 Cal. App. 
373; 11 Cal. App. 373 ; 9 Cal. 33, 59; 32 Cal. 597; 74 Cal. 298; 101 
Cal. 265; 100 Cal. 67, 484; 111 Cal. 670; 124 Cal. 112; 121 Cal. 
270; 139 Cal. 488. 



192. \\'hen action is brought upon a written instrument, copy of which is 
set out in or annexed to complaint, its genuineness and due execution 
is admitted unless answer is verified, whether complaint is verified or 
not. C.C.P. 447, 887, 449; Pom. Rem. 560; 119 Cal. 432; 82 Cal. 505; 13 
Cal. 62; 49 Cal. 38. 



193. Any material allegatior of :*^?.ct in a complaint not denied in answer is 
deemed admitted for all purposes of action — 

1. No evidence admitted thereon — 

2. No findings thereon allowed— 19 Cal. App. 85 ; 133 Cal. 145. 

3. Not necessary to expressly admit — just leave allegation unan- 
swered. C.C.P. 462, 463; Pom. Rem. 508; 167 Cal. 616; 159 Cal. 
581 ; 32 Cal. 456; 108 Cal. 294. 



194. Specific denials, defective in form or substance, do not raise an issue 
and have the effect of no denial at all — 

1. Negative pregnant — one that implies an affirmative. 16 Cal. App. 
446"; 139 Cal.^559. 

2. Conjunctive — one denying several allegations of facts joined by 
conjunction "and." 11 Cal. App. 373 ; 144 Cal. 140; 138 Cal. 281; 
110 Cal. 163; 90 Cal. 147. 

3. Literal denials — denving allegations in exact language of com- 
plaint. 38 Cal. 290. ' ' _ 

4. Legal conclusions — one denying the conclusions, but not the facts 
from which conclusions are drawn. 9 Cal. 33; 133 Cal. 292; 23 
Cal. App. 736; 24 Cal. App. 152 ; 99 Cal. 606; 35 Cal. 452 . 

64 



5. Evasive — one denying on information and l)elief, or want thereof, 
a fact presumed to be within defendant's knowledge. 15 Cal. 
App. 373; 111 Cal. 670. 

6. Sham denial — an unverified denial, or verified general denial, to 
a verified complaint. 128 Cal. 327 ; 10 Cal. 22; Pom. Rem. 509-514, 
528-530; 1 Enc. PI. and Prac. 796-807. 



195. A enial, whether general or special, puts in issue only the allegations 
of the complaint so denied, which are material to plaintiff's cause of ac- 
tion ; and defendant may introduce any proper evidence ten'ding to sus- 
tain the denial and defeat plaintiff's allegation. 10 Cal. 27. 304; 21 Cal. 
50; 30 Cal. 492; 76 Cal. 208; 117 Cal. 254; 145 Cal. 284; 31 Cvc. 693; 
Pom. Rem. 533-561 ; 1 Enc. PI. and Prac. 816-829; 128 Cal. 193. 
Such denials do not raise an issue, and evidence cannot be introduced 
thereunder, on following questions, tho' alleged in Complaint : 

1. Plaintiff's capacity to sue — raised only in defense by new matter. 
11 Cal. 70; 99 Cal. 605; 8 Cal. 585. 

2. Any defense which must be plead as new matter as explained in 
Lecture 17 post— 21 Cal. 50; 10 Cal. 27, 304; 30 Cal. 472: 118 Cal. 
689; 145 Cal. 416. 



65 



LECTURE 17. 

Answer — Defense by New Matter. 

198. New ]\Iatter as a defense is one whicli admits that the cause of action 
stated in the complaint once existed but seeks to avoid it by alleging 
facts showing that it has ceased to exist. (69 Cal. 86; 95 Cal. 54.S.) 

1. it is extrinsic matter not set up in the comjilaint. 

2. It is matter burden of proof of which is on defendant. 

3. Does not include matter shewing ])laintiff never had a cause of 
action. 

4. It is in effect Common Law confession and avoidance. Pom. Rem. 
548, 549, 566-568, 582. 586, p. 817-819 notes; 5 Stand. Proc. 228; 
4 Enc. PI. and Prac. 664; 2 Stand. Proc. 37; 1 Enc. PI. and Prac. 
830. 



199. This defense must be plead in affirmative allegations the same in form 
and substance as those in a complaint; 

1. Allegations must be in form either 

(a) Direct and positive, or 

(b) On information and belief. 

2. Must allege fully and particularly the ultimate material facts, in 
character and effect as heretofore explained for complaint. (Sec. 
134 ante.) Pom. Rem. 563-565. 



200. Defendant may plead all such defenses he may have, under the rules 
explained in last Lecture 16, sec. 188, whether a partial or complete 
defense. 

Mere mitigating circumstances not a defense, but matter of evidence, 
except in slander or libel, and actions involving malice and exemplary 
damages, should be plead. 167 Cal. 692; Pom. Rem. 569-572. 



201. Equitable defenses — Under the Code all equitable defenses may be 
plead as new matter in actions at law or Equity : 
1. Must be plead with same fullness and particularity as in a bill in 
Equity. 47 Cal. 146. 

2. Issues raised by it, must be tried first, — before legal issues. 88 
Cal. 180; 38 Cal. 300; 68 Cal. 188; 137 Cal. 539; 10 Cal. 160. 

3. No right to a jury to try such equitable issues. Sec. 385 post. 

4. Not compelled to plead them — instead may sue in Equity by 
separate action. 6 Cal. 452 ; 7Z Cal. 165. 

5. Examples of such defenses are as follows : 

(a) Fraud of all kinds. 

(b) Mistake of law or fact. 

(c) Subrogation and recission. 

(d) Equitable right or title under contract to convey, or other- 
wise. Pom. Rem. 26-35; 19 Cal. App. 518; 150 Cal. 608, 
258 ; 88 Cal. 325 ; 67 Cal. 447 ; 42 Cal. 452 ; 1 Cyc. 7Z7 ; 1 Enc. 
PI. and Prac. 837. 



202. Pleas in Abatement or Bar — are defenses by new matter and must be 
specially plead, if the facts showing them do not expressly appear on 
face of complaint. 

66 



1. Want of capacity to sue — (does not include rii^ht to sue.) 99 Cal. 
605 ; 12 Cal. App. 85. 

(a) Failure to file articles of incorporation. 158 Cal. 567; 23 
Cal. App. 211; 14 Cal. App. 530; 16 Cal. App. 569. 

(b) Failure to file and publish certificate of partnership. 67 
Cal. 635; 70 Cal. 195; 74 Cal. 155. 

(c) Appointment as Executor, Administrator, or other qualifica- 
tion, etc. (Sec. 96 ante). 

2. Another action pending" between same parties for same cause. 20 
Cal. App. 766; 110 Cal. 644; 135 Cal. 302; 151 Cal. 500. 

3. Res Adjudicata — former final judgment between same parties for 
same cause or fact. 167 Cal. 449; 19 Cal. App. 587; 18 Cal. App. 
188; 135 Cal. 302; 136 Cal. 569; 168 Cal. 415. 

4. Estoppel — by deed, in pais, or equitable. Void deed not. 166 
Cal. 557; 163 Cal. 807; 159 Cal. 250; 20 Cal. App. 388; 19 Cal. App. 
206; 161 Cal. 189; 134 Cal. 269; 115 Cal. 688. 

5. Plaintifif not real party in interest. 69 Cal. 145. 

6. Misjoinder, or nonjoinder parties plaintiff or defendant. C.C.P. 
433. No Estoppel to an Ultra Vires Act. 166 Cal. 82; Pom. Rem. 
573-574, 587, 588; 111 Cal. 133; 1 Stand. Proc. 25, 994. 



203. Pleas Non-Liability — 

First. Defenses no obligation made or act not committed raised by 
denial. Thus 69 Cal. 83. 

1. Statute Fraud plead by denial of contract. 158 Cal. 567; 23 
Cal. App. 303 ; 79 Cal. 525. 

2. Not signing or delivering contract denied. 

3. Not committing alleged tort denied. 

Second. Defenses admitting making obligation or committing act of 
tort, but showing no liability incurred is new matter and 
must be specially plead, when facts not appearing in com- 
plaint. Thus 118 Cal. 689. 

1. In Actions on contractual obligations. 

(a) Parties not capable of contracting. 

(b) Consent obtained by duress, menace, fraud, mistake, or 
undue influence. 18 Cal. App. 177; 56 Cal. 61, 403; 93 
Cal. 286. "^~~ 

(c) Want of consideration. 166 Cal. 386; 162 Cal. 413: 22 
Cal. App. 344: 140 Cal. 546; 135 Cal. 431. 

(d) Illegality of contract. 21 Cal. App. 39: 24 Cal. App. 674: 
2 Cal. App. IZy ; 68 Cal. 29. 

2. In actions for torts, other than negligence : 

(a) License — consent or participation of plaintiff. 45 Cal. 482. 

(b) All matters of justification. 152 Cal. 705. 

3. In actions for negligence. 

(a) Contributory negligence of plaintiff'. 158 Cal. 514; 99 
Cal. 468: 153 Cab 571 ; 134 Cal. 487: 168 Cal. 500. 

(b) Assumption of risk bv plaintiff'. 155 Cal. 612. 

(c) Acts of fellow servant. 152 Cal. 99; Pom. Rem. 579-581, 
583-585, 588. 



204. Pleas Liability ceased — Defenses which admit a liability once existed 
but for some reason has ceased, are new matter and must be specially 
plead, except payment. Thus 

67 



1. Release — am- facts sluiwini;' a release from liability incurred. 74 
Cal. 418; 153 Cal. 307; 118 Cal. 690^ 69 Cal. 86. 

2. Bankrui)tcy — discharge in. 159 Cal. 742. 

3. Accord and satisfaction — settlement of liability. 166 Cal. 25; 23 
Cal. A])]). 166; 153 Cal. 307; 21 Cal. 47 ; 69 Cal. 86 ; 83 Cal. 7. 

4. Tender of amount due. 53 Cal. 597. 

5. Failure of consideration, total or partial. 120 Cal. 529; 166 Cal. 
479. 

6. Statute of Limitations. 119 Cal. 528; 162 Cal. 178; 160 Cal. 90, 
501 ; 148 Cal. 669; 3 Cal. App. 263. 

7. Contract not properly performed (not performed at all arises on 
denial.) 1 Cal. 371 ; 52 Cal. 427. 

8. Warranty— violated by plaintifif. 153 Cal. 725 ; 124 Cal. 164. 

9. Rescission — contract terminated by, 

10. Forfeiture of plaintiff's right. 52 Cal. 268. 

11. Arbitration and award. 

12. Bona fida purchaser. 133 Cal. 657. 

13. Defects in Statute or ( )rdinance on which action is brought. 

14. Any lien, right or title of defendant. 

15. Payment — usually raised by denial, l)ut after obligation shown, 
burden to show payment on defendant. 129 Cal. 518; 14 Cal. 
App. 300; 150 Cal. 614; 135 Cal. 434; Pom. Rem. 576-578, 588, 
589, 590. 

16. Laches need not be plead. 164 Cal. 591 ; 162 Cal. 141. 



•A 



205. If not specially plead, these defenses by new matter are waived, and 
defendant can introduce no evidence concerning them, though antici- 
pated in allegations of complaint, except 145 Cal. 416. 
1. AMien shown or established by plaintiff's evidence. 44 Pac. 930; 
84 Pac. 400. 
V 2. Or defendant amends answer during trial, or after, to conform to 
proof. 153 Cal. 571 ; 74 Cal. 418; 29 Cyc. 581. 
3. Tiidgment mav be shown as evidence of title without pleading. 
168 Cal. 788; 151 Cal. 509. 



206. With few exceptions, these defenses by new matter cannot be plead in 
general terms, but all the facts must be alleged which are necessary to 
show every element constituting the defense. 
The following are examples : 
See Generally : 1 Enc. PI. & Pr. 830-851; Pom. Rem. 563-565; 1 Stan. 
Proc. p. 45-48, 55, 70. 

1. Pleas in Abatement. 

First : General rules relating to pleading same : 

1. They are not favored, and are strictly construed. 

2. Must exist at time filing answer containing plea. 

3. Must be plead fullv and with certainty and exactness. Ill Cal. 
133; 1 Stand. Proc. 41, 46. 

Second : If failure to file partnership or corporate certificate or pay- 
ment corporate tax, must allege facts showing; 

1. A case requiring filing certificate or paA'ment of tax. 

2. That such certificate not filed or tax paid at filing plea. 

3. That forfeiture charter declared for non-pavment tax. 158 Cal. 
576; 111 Cal. 136. 

68 



Third: If another action pending, — must allege facts showing; 

1. A prior action, brought and still pending. 

2. That parties to prior action are same as parties to action in 
which plea filed. 

3. That prior action involves same cause of action or subject mat- 
ter as pleaded action. 36 Cal. 134; 135 Cal. 302; 1 Stand. Proc. 
1037. 

2. Fraud. 

Not sufficient to allege in general terms; but all the ultimate facts must 
be alleged showing every essential element constituting fraud, and in- 
jury or damage to defendant as fully and with same particularity and 
certainty as in a complaint. (Sec. 136 (12) ante.) 93 Cal. 286; 159 
Cal. 648; 16 Cal. App._476; S3 Cal. 7; 30 Cal. 673; 39 Cal. 123; 82 Cal. 
321 ; Pom. Rem. Sec. 563 notes. 

3. Want of Consideration. 

This is one of the exceptions, and may be alleged in general terms to 
the effect that the contract sued on was made or executed without any 
consideration to support it ; except when a consideration must be al- 
leged in complaint, and then, it may be plead by denial. 4 Enc. PI. and 
Pr. 946-947 ; 9 Cyc. 738 ; 1 Pac. 907^ 

4. Failure of Consideration. 

The particular facts must be alleged showing : 

1. Nature and extent of consideration for the obligation sued on. 

2. That such consideration failed or was lost, and the manner and 
extent thereof. 

3. The act or omission of plaintiff causing such failure. 9 Cyc. 739; 
4 Enc. PI. and Pr. 950. 

5. Contributory Negligence. 

General allegation that plaintift"s negligence contributed to the injury 
alleged in complaint — not sufficient ; but must allege all facts and cir- 
cumstances showing: 

1. Particular acts done or omitted by plaintiff' in the transaction set 
out in the complaint. 

2. That such acts were negligently done or omitted by plaintiff, 

3. That such negligence proximately caused, or contributed to, his 
injury. 5 Enc^. PI. and Pr. 12; 158 Cal. 518; 29 Cyc. 582; 136 Pac. 
834; 168 Cal. 500. 

6. Statute of Limitations. 

Sufficient to allege generally : "that plaintiff's cause of action set out in 

the complaint is barred by the provisions of Section Code of 

Civil Procedure" (or other statute applicable). C.C.P. 458; 162 Cal. 
178; 160 Cal. 92. 504; 158 Cal. 690. 

7. Estoppel. 

See Gen : 8 Enc. PI. and Pr. 9 ; 8 Stand. Proc. 694. 
By judgment, deed, or conduct cannot be plead in general terms: 
First: By, judgment — must allege prosecution of action between 
same parties; on same cause of action; injury, right or prop- 

69 



/ 



erty ; decision and jud,i;nicnt therein in favor of defendant and 
same has become final. 19 Cal. Ap]). 589; 18 Cal. App. 188; 
9 Enc. PI. and Pr. 619; 168 Cal. 415. 

Second: By deed or contract — must allege execution deed or con- 
tract ; set out terms of deed or contract showing the estop- 
pel. 161 Cal. 194. 

Third: V>y conduct — must allege all the acts, declarations, conduct 
or omissions of ]daintiff showing everv element of an estoj)- 
pel. 134 Cal. 273; 159 Cal. 260; 26 Cal. 39; 115 Cal. 687; 
137 Cal. 328. 



70 




LECTURE 18. 

Answer — Counter-claim. 

209. A counter-claim is that part of the answer in which defendant pleads a 
cause of action against plaintiff for af^rmative relief or as an offset to 
plaintiff's recovery. 33 Cal. 495; 70 Cal. 112. 
1./ In no sense a defense, but onlv grounds for aftirniative relief. 79 

Cal. 262. 

If plaintift"s claim is defeated, defendant may have judgment on 

counter-claim, or (125 Cal. 48.) 

Be used as offset in reducing amount of plaintiff's recovery, if he 

succeeds. Pom. Rem. 681 ; 72 Cal. 540; 136 Cal. 507. 

In all cases, it must tend to defeat or reduce plaintiff's recovery 

if he should succeed. Pom. Rem. 620-623 : 641-643 ; 142 Cal. 420. 

Statute of limitations against, stops on filing complaint — not on 

filing counter-claim. 120 Cal. 28; 132 Cal. lo4; C.C.P. 437; Pom. 

Rem. 602-681; 19 Enc. PI. and Prac. 715; 101 Cal. 289; 89 Am. 

Dec. 482; 34 Cyc. 623. 

To be available must exist at time action is commenced. 41 Cal. 

661 ; 64 Cal. 489; 72 Cal. 226; 119 Cal. 474; 143 Cal. 253. 



210. Defendant may plead all the counter-claims he has which come within 
the rules hereinafter mentioned. 

1. The allegations are in same form and character as those in a com- 
plaint. 67 Cal. 19. 

2. If two or more, must be separately stated and each complete 
within itself. 

'^3. Each must be plead as a counter-claim — not as a defense. 67 Cal. 

590: 79 Cal. 263; 132 Cal. 160. 
4. One praver or demand for relief is made for all. C.C.P. 441 ; Pom. 
Rem. 609, 614, 615, 624, 629, 640. 

211. In Superior Court, a counter-claim for less than $300 may be plead as 
an offset, but not to obtain an independent judgment. \Vhen plaintiff' 
is defeated, defendant must sue by separate action in proper court. 126 
Cal. 292; 110 Cal. 259. 



212. In Justice's Court, defendant cannot plead a counter-claim for $300 or 
over, unless he waives excess. Defendant must sue thereon in Superior 
Court, restrain plaintiff's action, and compel him to plead his cause 
therein as counter-claim. 113 Cal. 196; 30 Cal. 546; 23 Cal. 61. 



213. A Counter-claim can only be plead by defendant against plaintiff', be- 
tween whom a several judgment might be had. 70 Cal. 112; 72 Cal. 224. 

1. Cannot be plead against a co-defendant, nor by a plaintiff against 
co-plaintiff. 

2. Cannot be plead by a necessary party plaintiff' sued as a defendant. 

3. If two or more plaintiffs, counter-claim must be against all, unless 
action is based on a right joint and several, or several in plaintiffs. 
14 Cal. 223. 

4. If two or more defendants, must be in Tavor of all, unless action 
is based on a liability joint and several, or several against defend- 

71 



ants. 11 Cal. App. 373: 70 Cal. 108; 113 Cal. 437; 115 Cal. 143; 

41 Cal. 59. 

Counter-claim must be in favor of defendant and against plaintiff 

in same right or capacity in which sued or suing. 7 Cal. 543, 

C.C.P. 438/855 ; Pom. Rem. 616, 617, 625-638. 

Cannot set up one against plaintiff and a stranger, nor in favor of 

defendant and stranger. 19 Cal. 646; 20 Cal. 277; 35 Cal. 195; 36 

Cal. 299; 43 Cal. 628; 72 Cal. 224; 101 Cal. 222; 114 Cal. 396. 



214. In Superior Court, the counter-claim which defendant mav jilead must 
arise, either C.C.P. 438. 

1. Out of the same transaction set forth in the complaint as founda- 
tion of plaintiff's claim. 4 Cal. App. 488. 

(a) Meaning of Transaction. Pom. Rem. 644-650. 653-668; 102 
N.W. 926. 

(b) Examples: 100 Cal. 30; 107 Cal. 206; 12 Cal. App. 37; 110 
Cal. 259; 164 Cal. 160; 128 Cal. 109; 142 Cal. 419; 158 Cal. 
27; 30 Cal. 247; 137 Cal. 333; 132 Cal. 155. 

2. Or connected with the subject of action : 

(a) Meaning "connected with" Pom. Rem. 651, 652, 669-670. 

(b) Examples: 159 Cal. 73S\ 93 N.Y. 558; 18 Pac. 881 ; 109 Cal. 
107; 116 Cal. 94. 

3. Or in actions on contract : any other cause of action arising on 
contract and existing at the commencement of the action. 101 
Cal. 291, 650; 143 Cal. 255; 64 Cal. 491 ; 125 Cal. 48; 72 Cal. 224; 
118 Cal. 334; 151 Cal. 730; Pom. Rem. 671-679; 618-623; 51 Cal. 
223; 41 Cal. 661. 

Additional examples of imi:>roper counter-claims: 114 Cal. 396; 
116 Cal. 96; 142 Cal. 419; 67 Cal. 589; 109 Cal. 107; 110 Cal. 259; 
35 Cal. 274; 39 Cal. 169; 57 Cal. 646; 116 Cal. 94; 168 Cal. 682. 

4. When cross demands exist between two persons, one can plead his 
demand as an oft'set to any action brought by the other, or by his 
assignee or legal representative. C.C.P. 440; 119 Cal. 470; 103 Cal. 
43; 168 Cal. 241. 253; 151 Cal. 723. 



215. In Justice's Court defendant may plead as counter-claim any cause of 
action upon which an action might be brought by defendant against 
plaintiff or his assignor in a Justice's Court. C.C.P. sec. 855. 



216. In Superior Court, counter-claims arising out of same transaction are 
waived if not plead, and no action can be thereafter maintained. Coun- 
ter-claims arising out of independent contracts are not waived, need 
not be plead, and separate action mav be brought thereon. C.C.P. 439 ; 
Pom. Rem. 680. 



217. In Justice Court, all counter-claims without exception are waived if not 
plead. C.C.P. 856. 



218. Plaintiff' does not have to answer or reply to a counter-claim, or defense, 
except in either Court, the execution of any written instrument plead 

72 



therein is deemed admitted unless denied l)v affidavit. 150 Cal. 629; 
110 Cal. 198. 

1. All other allegations are deemed denied without answer. 

2. Plaintiff may prove any defense thereto without pleading- it. This 
includes fraud, statute of limitations, or any defense. C.C.P. 462, 
448, 449, 887, 472; 164 Cal. 613; 159 Cal. 610; 119 Cal. 528, 432; 
21 Cal. App. 274: 11 Cal. App. 653; 152 Cal. 523; 127 Cal. 538; 89 
Cal. 339; 78 Cal. 212, 435; 82 Cal. 95; 69 Cal. 133; 168 Cal. 618. 



219. The issues raised by complaint and defenses are first tried, and after- 
wards the issues raised by counter-claim are tried, but all evidence ad- 
mitted may be used on both, or* all mav be tried together. C.C.P. 607, 
2042; 110 Cal. 118; 38 Cyc. 1309, 1352; Sec. 399 post. 

Plea in abatement should be tried before other defenses. 89 Cal. 
535. 



73 



LECTURE 19. 

Cross-Complaint. 

222, A cross-ccini])laint is a pleading', in effect a complaint, filed by a de- 
fendant in an action, jileading' one or more causes of action against 
any other party to the action. 165 Cal. 708. 

1. It is no part of the answer, but an indej)endent pleading. 

2. May be against a co-defendant, or plaintiff, or both. 

3. It cannot be filed against a stranger; he must be first made a 
party by order of court. 3 Cal. App. 345; 126 Cal. 591, 315; 145 
Cal. 570; 138 Cal. 308; 166 Cal. 47; 163 Cal. 207; 10 Cal. App. 75; 
168 Cal. 706. 

4. Cannot set up a claim in fqvor of defendant and a stranger. 69 
Cal. 616. 

5. Plaintiff may file against intervenor. 130 Cal. 27; C.C.P. 442; 
Pom. Rem. 682-684; 6 Stand. Proc. 296; 5 Enc. PI. and Prac. 673; 
26 L.N.S. 127. 



223. A cross-complaint is governed by the same rules of pleading as com- 
plaint. 

1. The form and substance of allegations are the same as in a com- 
plaint. 77 Cal. 432. 

2. Must contain all allegations essential in stating a cause of action. 
148 Cal. 61; 58 Cal. 239; 87 Cal. 263. 

3. Several causes of action mav be joined under same rules as com- 
plaint. 84 Cal. 586. 

4. Statute of Limitations cease to run only on filing cross-complaint. 

5. The title of parties is first stated in cross-complaint as in com- 
plaint, then follow name of party cross-complainant ; — party filing 
called "cross-complainant," and others "cross-defendants." Pom. 
Rem. 684. 

6. Must be designated as a cross-complaint to be so treated — except 
in some instances. 79 Cal. 263; 132 Cal. 468; 69 Cal. 616; 138 
Cal. 257; 80 Cal. 272; 69 Cal. 133. 



224. A cross-complaint can be filed onlv in Superior Court, not in Justice or 
Police Courts. 164 Cal. 150. 

1. It may be filed as "of course" at time answer is filed. 

2. It may be filed after answer before trial by leave of court obtained 
by exparte application, but better practice is to make motion on 
notice. 

3. It is served without summons on attorneys of parties who have 
appeared in action. 8 Cal, App. 258; 136 Cal. 315. 

4. On parties who have not appeared, it is served with summons as 
a complaint. C.C.P. 442, 852; 110 Cal. 27; 87 Cal. 154. 

5. Cannot be filed for less than $300. 110 Cal. 259; 142 Cal. 201. 



225. A cross-complaint can be filed in an action only when the cause of 
action therein plead, C.C.P. 442. 
1. Relates to or depends upon the contract or transaction sued upon. 
Examples proper: S7 Cal. 592; 126 Cal. 591; 2 Cal. App. 227; 
138 Cal. 308. 

Examples not proper: 163 Cal. 207; 158 Cal. 27; 109 Cal. 107; 
142 Cal. 419; 68 Cal. 277 ; 69 Cal. 616; 126 Cal. 315; 168 Cal. 706, 

74 



2. Or affects the projierty to wliicli the action relates, 

Examples proper: 127 Cal. 617. 

Examples not proper: 122 Cal. 244; 10 Cal. App. 53). 

3. When it affects or tends to reduce or defeat plaintiff's recovery, 
but this does not mean that it is in any sense a defense. 142 Cal. 
419 : 79 Cal. 262 ; 76 Cal. 1 1 ; 120 Cal. 238 ; 80 Cal. 272 ; 100 Cal. 149. 

Examples: To enforce subroj^ation in foreclosure liens. 159 
Cal. 53?. 

4. In action on tort cannot set u]) an independent tort by cross-com- 
plaint. 76 Cal. 15; 101 Cal. 648; 68 Cal. 280; see contra 84 Cal. 
585. 



226. \\'hether cross-complaint is filed in proper case, or pleads a cause of 
action which can be properly made in action by cross-complaint is 
raised, — 

1. If application to file is made on notice, by objecting to its filing. 

2. If filed without notice, by motion on notice to strike from files, or 

3. By objecting to evidence thereunder at trial, or 

4. By motion for non-suit after cross-complaint's evidence is put in. 

5. Bv argument after all evidence is in and trial concluded. 3 Cal. 
App. 345. 

6. Cross defendants may plead to it. and must answer it same as to a 
complaint. 119 Cal. 433; 34 Cal. 122. 

7. A\'hether filed in proper case, waived by not objecting. 150 Cal. 
208: 22 Cal. App. 721; 148 Cal. 457. 



227. The issues raised by complaint and answer thereto are first tried, and 
afterwards the issues raised by cross-complaint and answer thereto are 
tried, but all evidence admitted may be used on both. 61 Cal. 238; 137 
Cal. 539; Sec. 219 ante, Sec. 399 post. 



228. Defendant's claims should be plead by counter-claim where possible, 
otherwise by cross-complaint, and the difference between them is this: 

1. One is part of answer, — the other a separate pleading. 

2. One is by defendant only against plaintiff, — the other by de- 
fendant against any party. 

3. One on an independent contract. — the other not. 

4. One cannot be based on separate claim to property, — the other 
may be. 

; 5. To one no answer is made, — to the other an answer must be filed. 

6. As to one limitation stops at date complaint filed, — as to the 
other, at date of its filing. 120 Cal. 28; 132 Cal. 155; See 136 
Cal. 507. 



229. Cross-complaint and counter-claim generally unnecessary when de- 
fendant can obtain same relief on trial of issues raised bv complaint and 
defenses. 80 Cal. 261 : 100 Cal. 149; 132 Cal. 434; 140 Cal. 378; 150 Cal. 
208; 4 Cal. App. 301 ; 5 Cal. App. 395; 22 Cal. App. 719. 



75 



LECTURE 20. 

Objections to Sufficiency of Answer and Cross-Complaint. 

232. The sufficiency of answer, or any defense or counter-claim therein to 
state a defense or counter-claim may be tested in the following manner: 

1. By demurrer. C.C.P. 443. 

2. By motion to strike out. 

3. By motion for judgment on the pleadings. 

4. By motion to settle the issues. 

5. By objection to evidence. Pom. Rem. 485-496. 



233. A demurrer to answer is a pleading by plaintifif raising defects appear- 
ing on face of answer, and creates issues of law triable by the Court. 

1. It must be served and filed in 10 days in Superior Court after 
answer is served, unless extended by stipulation or order of court, 
and must be in writing. 

2. It must be made in 5 days in Justice Court after answer is filed, 
oral or in writing. 

3. Can be made to answer as a whole only when it entirely fails to 
state a defense or counter-claim. 

4. Should be made to each defense and counter-claim separately. 

5. Cannot be made to a part of a defense or counter-claim. 

6. It is brought to hearing in same manner as demurrer to complaint. 

7. In Superior Court notice of ruling should be given, unless 
waived. C.C.P. 443: 476, 857. 858: 6 Enc. PI. and Pr. 296; 6 
Stand. Proc. 



234. A demurrer may be made only on the following grounds which must 
be stated therein, and which must appear on face of answer — no evi- 
dence can be given to support them. 

1. That several causes of counter-claim have been improperly joined. 

(a) Applies when several counter-claims are separately plead 
and joined in answer. 

(b) Must specify the particular causes so improperly joined. 

(c) Tested under rules for filing counter-claims given in Lec- 
ture 18. 

2. That several counter-claims have been plead, but not separately 
stated. 

(a) Applies when all are jumbled in one statement. 

(b) Must specify the particular counter-claims referred to. 

3. That answer, (or any particular defense or counter-claim speci- 
fied) does not state facts sufficient to constitute a defense or 
counter-claim. 

(a) Must refer to and specify each defense, or each counter- 
claim separately. 

4. That answer (or any defense or counter-claim) is ambiguous, or 
unintelligible, or uncertain. 

(a) Each is a separate ground, and be specified separately. 

(b) Must specify particulars showing wherein defect exists. 

5. That counter-claim is barred by the Statute of Limitation, specify- 
ing particular section of Code or Statute. 119 Cal. 529. 

6. By not demurring, all such defects waived, except those specified 
in 3 and 5 paragraphs above. C.C.P. 444; Pom. Rem. 486-496. 



235. Motion to strike out is made orally on written notice specifying what 
is to be stricken out. .^rounds for it, and what papers will be used and 
may be made to whole or parts of answer. 47 Cal. 294; 50 Cal. 176. 

1. To whole answer, on ground it is sham. 34 Cal. 161. 

(a) When unverified to verified complaint. 

(b) When untrue or evasive on its face. 145 Cal. 30. 

(c) Not filed in time. 90 Cal. 215. 

(d) But not for defendant refusing to testify or to pay costs. 
120 Cal. 40; 114 Cal. 212; 145 Cal. 606; 144 Cal. 160. 

2. To whole of a defense, on ground it constitutes no defense, and 
is irrelevant and redundant matter. 11 Cal. App. 171. 

3. To whole of counter-claim, on grounds, either 

(a) Not one which can be plead in action, or 

(b) Does not state facts sufticient to constitute a cause of action. 

4. To parts of defense or counter-claim on ground such part is ir- 
relevant and redundant matter. 

(a) Must specify particular part by quoting language to be 
stricken out. 

5. Motion can be made onlv within time for demurrer. C.C.P. 453; 
Pom. Rem. 561 notes; 11 Cal. App. Z7Z; 7 Cal. App. 710; 34 Cal. 
153; 51 Cal. 313; 57 Cal 285 ; 20 Enc. PI. and Prac. 1, 986; 31 Cyc. 
615-642. 



236. Motion for judgment on pleading may be made by plaintifif orally on 
written notice specifying motion, grounds for it, and papers to be used. 

1. Can be made at any time before trial on notice. 

2. May be made at beginning of trial without previous notice, orally 
specifying grounds. 

3. Can be made only on ground answer contains no defense nor 
counter-claim. 158 Cal. 282. 

4. Has effect of general demurrer. 

5. Defendant can defeat by asking and obtaining leave to amend 
before motion is granted. 4 Cal. App. 169; 19 Cal. App. 161; 15 
Cal App. 373, 434; 14 Cal. App. 310. 328; 148 Cal. 548; 152 Cal. 
338; 128 Cal. 327; 107 Cal. 177. 373; 101 Cal. 432; 87 Cal. 422; 
133 Cal. 292; 143 Pac. 322; 5 Cal. App. 740; 3 Cal. App. 94, 294; 
34 Cal. 161; 11 Enc. PI. and Prac. 1030-1047; 31 Cyc. 606. 



237. Plaintiff, at beginning of trial, may make motion, orally without prev- 
ious notice, to settle the issues, if any, made by answer proper for trial. 

1. On ground denials are so defective, or new matter or counter- 
claims are so insufficient, as to raise no issue. 

2. Must specify particular defects claimed. 

3. Ruling of Court determines issues properly made on which evi- 
dence will be received. 135 Cal. 431 ; 34 Cal. 161. 



238. Plaintiff", during trial, may test sufficiency of any defense or counter- 
claim, by objecting to receiving any evidence in support thereof. 

1. If denials insufficient, plaintiff' ma}- disregard them, introduce no 
evidence and rely on such defects in argument. 

2. In such case, plaintiff cannot put in evidence, and then object to 
defendant's evidence supporting denials. 

3. When defendant oft'ers evidence to support new matter, plaintiff 

77 



J 



may object on j^round new matter alleged does not constitute a 
defense. 

4. When defendant offers evidence to support counter-claim plead, 
/ plaintiff object on grounds either 

I (a) Counter-claim plead is one that cannot l)e set \\\) in the 

action, or 
(b) Answer does not allege facts sufficient to constitute a coun- 
ter-claim. 

5. These objections may be made, altho' demurrer and other mo- 
tions have been made and overruled. 31 Cyc. 759. 



239. All defects in answer are waived when case is tried on theory issues 
are properly raised thereby, except ground that answer does not allege 
facts sufficient to constitute a counter-claim which may be made at any 
time. 156 Cal. 110; 21 Cal. App. 688; 19 Cal. App. 247; 16 Cal. App. 
226, 447; 14 Cal. App. 326; 3 Cal. App. 127; 120 Cal. 616; 106 Cal. 
616; 132 Cal. 154; 168 Cal. 682. 



240. Defects in a cross-complaint are raised by the same means and in same 
manner, as a complaint, under the rules heretofore explained in L,ec- 
ture 15. C.C.P. 442. 



78 



LECTURE 21. 

Amendments of Pleadings and Proceedings. 

250. -\n amendnient of a pleading', docunieiit or proceeding in an action is 
the changing" of it to correct an error or mistake, so that it will cor- 
rectly exjiress what is intended. 

Any pleading, document or proceeding in an action may be amended to 
some extent. 

1. Pleadings — Complaint, demurrer, answer, notices of motions. 

2. Process — Summons, writs and returns thereon. 

3. Evidence — Affidavits, depositions, testimony, exhibits. 

4. Findings of Court and Verdicts of juries. 

5. Judgments and orders of court. 

6. Bills of exceptions and statements. 

7. Transcripts and briefs on appeal; undertaking an appeal. 161 
Cal. 209; 31 Cyc. 359-498; 1 Stand. Proc. 848; 1 Enc. PI. and 
Prac. 462. 



251. Pleadings may be amended in one of three ways: 

1. On their face bv interlineation — only bv leave of trial court when 
filed. 

2. By serving and filing amendment in separate instrument. 

3. By serving and filing entire pleading as amended. 

4. Amendments by separate instrument must be verified if original 
was. 31 Cyc. 388; 1 Enc. PI. and Prac. 642. 



252. x\ny pleading may be amended once, "as of course," that is, without ob- 
taining leave of court (except by interlineation of a filed pleading) as 
follows : 

1. Complaint — before answ^er filed, or if demurrer filed, before it is 
heard. 148 Cal. 511. 

2. Answer — before demurrer heard, or if none filed, within time to 
demur. 151 Cal. 9, 581. 

3. Demurrer — before it is ruled upon by Court. 7 Cal. App. 683; 
149 Cal. 556. 

4. Notice of motions — at any time before heard and determined. 
C.C.P. 472; 1 Stand. Proc. 855; 1 Enc. PI. and Prac. 629. 



v^53. At any other time, a pleading can be amended only by leave of trial 
Court obtained on motion and with such leave, a pleading may be 
amended (a) before or during trial, (b) after trial to conform to proof, 
(c) sometimes after judgment: — 166 Cal. 501; 164 Cal. 188; 167 Cal. 
616; 163 Cal. 60; 23 Cal. App. 166; 22 Cal. App. 282; 9 Cal. App. 114; 
154 Cal. 513. 

1. If at or during trial, motion made without previous notice. 

(a) Court may impose terms in granting" leave. 150 Cal. 714. 

(b) Opposite party entitled to continuance of trial. 131 Cal. 
270; 168 Cal. 783. 

2. At other times, motion must be made after notice to adverse 
party. 

(a) The amendment or amended pleading should be served with 
notice. 

3. If application delayed, should show cause therefor by affidavit or 

79 



other evidence. 151 Cal. 13. 581; 167 Cal. 90; 22 Cal. App. 199; 
152 Cal. 290; C.C.P. 473; 21 Cal. App. 444, 456; 20 Cal. App. 
655; 153 Cal. 441; 1 Stand. Proc. 860; 1 Enc. PI. and Prac. 634. 
4. Any such amended pleading filed without leave of Court may on 
motion 1)C stricken from files. (163 Cal. 60.) 



254. Amended pleading supersede original and relate back to commence- 
ment of action. 101 Cal. 159; 163 Cal. 256; 24 Cal. App. 22; 20 Cal. 
App. 655; 14 Cal. App. 328; 11 Cal. App. 494; 153 Cal. 456; 149 Cal. 
556. 

1. Original ceases as pleading but may be used to impeach party as 
witness or as evidence of filing, etc. 100 Cal. 446; 118 Cal. 69; 
114 Cal. 196; 8 Enc. PI. and Prac. 19. 

2. If new party added or new cause stated, action deemed com- 
menced on its filing. 166 Cal. 121, 478; 23 Cal. App. 216; Pom. 
Rem. p. 643 note; 137 Cal. 154. 

3. Amendment in substance opens default if made afterwards. 156 
Cal. 446; 134 Cal. 421. 

4. Amendments served on attorney of adverse parties who have 
appeared ; and with summons on party not appeared. 

5. Same pleadings made to amendments as to original by adverse 
party. C.C.P. 432, 465; 166 Cal. 157. 

6. Does not afifect Injunction issued. 33 Cal. 497; 152 Cal. 167. 
Nor attachment. 79 Cal. 556. 

7. Cures any error in ruling on demurrer: — 75 Cal. 519; 86 Cal. 
445; 90 Cal. 245; 112 Cal. 1. 



255. 




Great liberality is allowed by Code as to extent or character of amend- 
ment, and it is largelv within discretion of trial Court. 158 Cal. 425; 
17 Cal. App. 254. 
1. Complaint may be amended by adding or dropping parties, com- 
pleting or changing theory of cause of action, changing relief 
sought, etc., except:— (75 Cal. 519; 121 Cal. 115; 23 Cal. App. 
216, 369.) 
(a) Parties cannot be entirely changed. 
-y (b) Wholly dififerent cause, entirely foreign to action, cannot 
'^ be introduced. 166 Cal. 121; 132 Cal. 421; 163 Cal. 135, 200; 
156 Cal. 38; 22 Cal. App. 282; 24 Cal. App. 295. 
(c) Action ex contractu cannot be changed to one ex delicto, or 
vice versa. 
Answer, may be amended to add new defenses, or counter-claims, 
or any other extent, except (162 Cal. 178; 157 Cal. 762; 23 Cal. 
App. 303; 11 Cal. App. 510; 131 Cal. 267.) 
(a) Where unconscionable, or would work injustice, may be 
denied. 151 Cal. 13; 122 Cal. 109; 156 Cal. 636; 12 Cal. 
App. 85, 698; 152 Cal. 290; 139 Cal. 169. 

3. Demurrer, may be amended to state new grounds, or any extent. 

4. Notice of Motion — may be amended to correct statements therein 
made. 

(a) Cannot supply essential omissions, or change substance en- 
tirely. 23 Cal. App. 281. 

(b) Best to withdraw, and file new one, if within time. Pom. 
Rem. 329, 456-457 notes ; 20 Cal. App. 541 ; 168 Cal. 165 ; 31 
Cyc. 407; 1 Stand. Proc. 904; 1 Enc. PI. and Prac. 547. 

80 



256. All writs, — as sunimons. execution, attachment, etc. — may be amended 
by leave of Court to correct errors in form, but not omissions or errors 
in material substance. 

1. Best to recall or set aside writ, and obtain new one. 

2. Affidavit, undertaking or other papers to obtain writ not amended, 
except in some cases. C.C.P. 558; 23 Cal. App. 67; 13 Cal. App. 
458; 168 Cal. 570. 

3. Return of writ may be amended by withdrawing if filed, and fil- 
ing as amended. 162 Cal. 638 ; 160 Cal. 390; 103 Cal. 519 ; 149 Cal. 
687; 76 Cal. 328; C.C.P. 128, sub. 8; 157 Cal. 647; 67 Cal. 398; 72 
Cal. 564; 38 Cal. 372; 50 Cal. 511; 79 Cal. 600; 131 Cal. 527; 17 
Cyc. 1043 ; 1 Enc. PI. and Prac. 658. 



257. Evidence as affidavits, depositions, testimony, exhibits — may be 
amended by leave of Court, upon proper showing and before action of 
Court thereon, or judgment, and sometimes after judgment. 18 Cal. 
App. 114; 92 Cal. 199 ;^103 Cal. 536; 119 Cal. 283. 



258. Findings and verdicts may be amended to correctly express what was 
intended. 

1. Verdicts, clerical errors, or formal matters mav be amended by 
jury or Court. C.C.P. 619. 

2. Verdicts, matters of material substance, can be amended only 
by jury before discharge. 

3. Findings, clerical errors or mistakes can be amended at any time, 
but judicial errors, or matters of substance can be amended only 
on motion for new trial, or on appeal. 148 Cal. 206; 82 Cal. 533; 
121 Cal. 194; 165 Cal. 372; 24 Cal. App. 101; 38 Cyc. 1892, 1987. 



259. Judgments and Orders may be vacated, set aside and amended : — 

1. Intermediate judgments or orders may be amended or changed 
at any time by Court, or entered nunc pro tunc. 165 Cal. 591 ; 
159 Cal. 710; 23 Cal. App. 160; 140 Cal. 178. 

2. Final judgments or orders may be amended by the Court as fol- 
lows: 

(a) If void or without jurisdiction may be vacated at any time. 

(b) Clerical or formal errors may be corrected bv Court at anv 
time._ 165 Cal. 450; 162 Cal. 343; 153 Cal. 644. 

(c) Judicial errors — those depending upon law, evidence or find- 
ings to support — can be corrected only on motion for new 
trial, or to enter a different judgment, or on appeal. 14 Cal. 
App. 171; 124 Cal. 426; C.C.P." 128, sub. 8; changing order 
granting new trial, 165 Cal. 365 ; 7 Cal. App. 138 ; can make 
no change after appeal from judgment or order, 167 Cal. 
342; 23 Cyc. 876; 15 Enc. PI. and Prac. 205, 349. 

3. Memorandum of costs may be amended. 3 Cal. 15; 130 Cal. 389. 



260. Bill of Exceptions or Statements may be amended in any respect when 
settled b}"- Court. Thereafter they can be amended by leave of trial 
court on motion with notice. 152 Cal. 697; 2 Cal. App. 259. 
Cannot be amended in Appellate Court. 105 Cal. 409; 118 Cal. 360. 

81 



261. Transcripts on appeal can be amended by leave of Appellate Court on 
motion with notice for diminution of record. Briefs may be corrected 
or added to bv leave of Appellate Court on motion with or without no- 
tice. 160 Cab 95. 
Amending undertaking; on appeal. 161 Cal. 209; 152 Cal. 484, 558. 



82 



LECTURE 22. 

Supplemental Pleadings — Construction of Pleadings. 

165. A supi)lemental plcadinj^ is one served and filed after the filing- rif orij?- 
inal alleginj:^ facts material to the case, and which have occurred after 
commencement of action. 

1. Relate only to complaints and answers. 

2. No such thing as supplemental demurrers or motions. C.C.P. 
464; Pom. Rem. p. 432 note; 31 Cyc. 499; 21 Enc. PI. and Prac. 4. 



266. 



7^ 



Supplemental pleadings differ from amended pleadings in this: 

1. Facts existing at or before commencement of action, though dis- 
covered later, must be plead by an amended ])leading. 

2. Facts occurring or coming into existence after commencement of 
action must be plead by supplemental pleading. 

3. Amended pleading relates back to commencement of action and 
supersedes original — supplemental pleading does not, but only 
supplements original pleading. 93 Cal. 656; 151 Cal. 732; 109 Cal. 
116; 21 Enc. PI. and Prac. 9, 13. 



'^267. A supplemental pleading can be filed only by leave of Court had on 
motion, without notice if at trial, other times with notice. 72 Cal. 224. 

1. No absolute right, but onlv in discretion of court. 98 Cal. 337; 
80 Cal. 74. ^ ^ 

2. Supplemental pleading should be served with notice and pre- 
sented with motion. 

3. If motion delayed, should serve and file afiidavit showing cause 
of delay. 

4. Should be served and filed as other pleadings. 94 Cal. 86; 27 Cal. 
300; 159 Cal. 742; 21 Enc. PI. and Prac. 55. 



'268. A supplemental pleading may be so filed at any time before, during 
or after trial, but before judgment; — cannot be allowed after judgment 
is filed or entered. 54 Cal. ^135; 21 Enc. PI. and Prac. 51. 



269. A supplemental complaint is filed and used for the following purposes : 

1. On substitution of parties plaintiff', to show his interest, qualifi- 
cation and reasons for substitution. 93 Cal. 656; 116 Cal. 273. 

2. To bring in as party a person acquiring an interest or becoming 
liable after commencement of action. 

3. To make claim for damages or other relief accruing after com- 
mencement of action. 98 Cal. 337 \ 7 Cal. App. 324; but not con- 
tinuing, 117 Cal. 310. 

4. To plead any fact material to plaintiff's claim occurring after 
commencement of action. 127 Cal. 630; 102 Cal. 620; 31 Cyc. 
502; 21 Enc. PL and Prac. 15. 



V 



270. A supplemental complaint can only set up such facts as are "Material 
to plaintiff's claim or cause of action" alleged in complaint. 
1. If plaintiff had no cause of action when commenced, he cannot 

83 



make one bv su])plemental coiiii)laint. 108 Cal. 264; 121 Cal. 42; 
57 Cal. 12; '122 Cal. 245. 

2. It cannot change cause of action, nor ])lead an entirely new one. 
/ 108 Cal. 264. 

3. It can otherwise change the issues, or the relief prayed for. 

4. It can change nature or theory of action from law to equity or 
vice versa, but not ex contractu to ex delicto, or vice versa. Pom. 
Rem. p. 433 note; 98 Cal. 337; 127 Cal. 630: 143 Pac. 1029; 168 
Cal. 671. 



271. A supplemental complaint is governed by the same rules as to form 
and character of allegations as apply to original complaint, except 

1. It does not alone state a complete cause of action. 

2. It must be taken and construed in connection with complaint. 

3. It commences: "Plaintiff by leave of Court first obtained, files 
this supplemental complaint herein and alleges." 21 Enc. PI. 
and Prac. 67. 



272. A supplemental answer is used for the purpose and to plead the facts 
as follows : 
1. On substitution of party as defendant, to show his interest quali- 
fication, and cause of substitution. 93 Cal. 656; 86 Cal. 561; 116 
, Cal. 273. 
/2. To plead any new defense arising after commencement of action. 
- 3. To set up any facts aiTecting a defense or counter-claim occurring 
after commencement of action. 27 Cal. 238; 60 Cal. 94, 240; 83 
Cal. 373; 64 Cal. 166, 177. 

4. Governed by same rules as apply to the answer. 

5. May not show a complete defense or counter-claim ; is construed 
with the answer. 31 Cyc. 506; 21 Enc. PI. and Prac. 42. 



273. Objections to a supplemental pleading may be made within same time 
and by same means as to the original pleading. 

1. If motion for leave to file is made on notice, objection should be 
made at hearing on grounds : 

(a). Laches, — application too late. 

(b) Not a proper supplemental pleading in form or substance. 

2. If filed without leave, or on leave without notice, motion to strike 
from files should be made. 98 Cal. 339. 

(a) On grounds no leave granted, or no notice given. 

(b) For same reasons, as objections might be made as above. 

3. If construed with original pleading, it alleges no cause of action, 
or defense, or is defective in substance. 

(a) Demur on same grounds as to original pleading. 102 Cal. 
620. 

(b) Motion to strike out as sham, or redundant, or immaterial 
matter. 

(c) Judgment on Pleadings, objection to evidence, motion to 
determine issues, motion for non-suit, etc., as to original 
pleadings. 21 Enc. PI. and Prac. 75. 

84 



274. To determine its efifect. two rules of construction are applied to a 
pleading : 

Vl. Its allegations are liberally construed with a view to substantial 
justice between parties. 153 Cal. 603; 105 Cal. 254. 

(a) Applied on general demurrer, during trial and after judg- 
ment. 

(b) As to matters of form, and inferences to be drawn from al- 
legations made. 

(c) As to character of a pleading, whatever the partv mav call 
it. C.C.P. 452, 469-471. 475 ; 165 Cal. 721 ; 22 Cal.' App^ 500; 
103 Cal. 280. 

2. Its allegations are strictlv construed against the pleader. 122 
Cal. 641. 

(a) Applied particularly on special demurrer. 

(b) Relates to uncertainty, and all matters of substance 
whether cause of action or defense alleged. 131 Cal. 11. 

(c) Pleader presumed to allege all facts most strongly in his 
favor. 14 Cal. App. 328; 7 Cal. App. 738; 102 Cal. 476: 139 
Cal. 22. 

(d) Pleader precluded by name he gives pleading, when he 
seeks advantage against adverse party. Pom. Rem. 440-441 
notes; 4 Enc. PI. and Prac. 755, 759; 31 Cyc. 78. 



85 



LECTURE 23. 

Dismissal of Action — Defaults and Relief Therefrom. 

277. A dismissal is the termination, in scjme lej^al way. of the action which 
puts an end to any further proceeding therein l)y Court in which then 
pending, except — 

1. Proceedings to vacate or set aside tlie dismissal. 

2. Proper Proceedings to review order of dismissal by trial or Ap- 
pellate Court. 

2 Cal. App. 165: 154 Cal. 265; 14 Cyc. 391; 6 Enc. PI. and Prac. 
829; 7 Stand. Proc. 651. 



278. The dismissal of an action may be had under varying circumstances — 

1. At instance of plaintiff alone. 

2. At instance of defendant alone. 

3. By stipulation of both parties. 

4. By the court on motion. 
C^C.P. 581b, 583 ; 167 Cal. 216. 



279. Any action, in which no counter-claim, cross-complaint, or answer ask- 
ing affirmative relief is filed by defendant, may be dismissed by plain- 
tiff alone. 

1. Only at any time before trial. 

(a) By filing with clerk an order to dismiss signed by plain- 
tiff's attorney, or himself, if no attorney. 

(b) Clerk himself then enters judgment of dismissal on plain- 
tiff paying cost, 

(c) Clerk then delivers to defendant any bond given on pro- 
visional remedy. 

2. If at, during, or after trial, but before judgment. 

(a) jNIotion to Court, on notice if after trial, to defendant. 

(b) If granted, Court signs judgment or orders Clerk to enter. 
C.C.P. 581, 890; 3 Cal. App. 448; 2 Cal. App. 165; 5 Cal. 
App. 581, 395; 132 Cal. 432; 136 Cal. 315; 14 Cvc. 394; 6 
Enc. PI. and Prac. 833; 7 Stand. Proc. 655. 



280. Any action may be dismissed by order of Court at instance of defen- 
dant alone, 

1. \\'hen no summons is issued within one year after filing com- 
plaint. 

2. When summons not served and returned within three years after 
filing complaint, except in Justice Court. 9 Cal. App. 166. 

3. When plaintiff fails to bring case to trial within two years after 
answer filed, or on change venue to pav filing fee within one year. 
C.C.P. 581b, 583; 167 Cal. 216. 

4. When plaintiff fails to prosecute action with reasonable diligence 
before answer filed. 167 Cal. 216; 163 Cal. 655; 162 Cal. 105; 11 
Cal. App. 155; 147 Cal. 715; 148 Cal. 161. 

5. A\'hen plaintiff' fails after notice, served or waived, to appear at 
trial. 

6. When plaintiff fails to prove case at trial — called non-suit. 

(a) But not in Justice Court. 163 Cal. 701. 

7. Defendant must make motion for order, and when on first four 

86 



grounds give notice and support ground by records, or affidavits 
or both. C.C.P. 5Sla, b. 5<S3, 581 ; 167 Cal. 260; 23 Cal. App. 29; 
144 Cal. 426: 150 Cal. 793. 

Proceedings for new trial niav be dismissed for failure to prose- 
cute. 20 Cal. App. 8; 153 Cal 179: 14 Cvc. 425: 6 Enc. PI. and 
Prac. 875; 7 Stand. Proc. 669. 



281. Any action may be dismissed on stipulation of both parties. 

1. If before trial, clerk dismisses on filing stipulation, same as on 
application of plaintiff. 

2. At other times, bv order of court on filing stipulation. C.C.P. 
581 ; 6 Enc. PI. and Prac. 955 ; 7 Stand. Proc. 683. 



282. Any action may be dismissed by the Court on its own motion, or on 
motion of defendant. 

1. At trial and before submission, plaintiff abandons it. 

2. When no summons is issued within one vear after complaint 
filed. 

3. When summons not served and returned within three years after 
filing complaint, and no appearance filed bv defendant, except in 
certain actions. 19 Cal. App. 793: 137 Cal.'270; 147 Cal. 605; 132 
Cal. 81; 126 Cal. 607; 128 Cal. 255. 

(a) Does not apply in Justice Court. 9 Cal. App. 166. 

(b) If dismissed as to liusl)and, must be as to wife also. 147 
Pac. 147. 

4. When action is not brought to trial within five vears after answer 
filed. 164 Cal. 607. 

5. When it appears court has no jurisdiction of subject matter of 
action. 

6. When on change Venue, plaintiff fails to pav filing fees. C.C.P. 
581, 581a-b, 890: 6 Enc. PI. and Prac. 961. ' 

7. Cannot grant non-suit on Court's own motion. 16 Cal. App. 510. 



283. Any such dismissal does not bar the prosecution of another action, un- 
less dismissed by consent of both parties amounting to a retraxit, and 
not then, when dismissed without prejudice. C.C.P. 582; 7 Stand. 
Proc. 684. 



Defaults. 

284. A default is the failure or omission of a party to plead or take any 
other proceeding in an action within time provided by law. 

1. Special appearance does not extend time nor prevent default. 

2. Time to perform act may be extended by stipulation any extent, 
or bv order of Court for limited extent. C.C.P. 1054 : 22 Cal. App. 
149,^737. 

3. Filing pleading after time but before entry of default, or a defect- 
ive pleading in time, prevents default until determined bv Court. 
166 Cal. 525; 162 Cal. 44; 16 Cal. App. 575: 7 Cal. App. 710; 13 
Cyc. 759; 6 Enc. PI. and Prac. 10; 6 Stand. Proc. 804. 

87 



285. Such default in filiui^ pleadings is enforced by entry of judgment 
against defaulting party. 

1. In action on contract for money or damages, when defendant is 
personally served and fails to answer. 

(a) Plaintifif files order with Clerk to enter his default. 

(b) Clerk enters default, and then judgment for amount prayed 
for. 151 Cal. 504. 

2. In all other actions, when defendant fails to answer, or to appear 
at trial after answer. 150 Cal. 647; 58 Cal. 95. 

(a) Plaintiff files order with Clerk to enter defendant's default 
if he has not answered. 

(b) Applies to Court and obtains judgment for relief demanded. 

3. If plaintiff fails to amend complaint after demurrer sustained, or 
to appear at trial, defendant enters his default and obtains judg- 
ment on application to Court. C.C.P. 585, 432, 871, 872, 890;' 6 

• Enc. PI. and Prac. 54, 62, 99; 6 Stand. Proc. 806. 



286. Such default in any other proceedings is enforced by motion or objec- 
tion wdien proceeding is attempted. 

1. Application for change venue, by objection when motion is made. 

2. Provisional Remedy obtained, by motion on notice to set aside 
or objection to granting. 

3. Motion for new trial, by objection when made. 24 Cal. App. 213. 

4. Bill of Exception or Statement, by objection to settlement, or 
when sought to be used. 156 Cal. 576; 22 Cal. App. 7Z7 ; 10 Cal. 
App. 725^150 Cal. 238; 153 Cal. 190. 

5. Memorandum of Costs, by motion to strike from files or to retax. 

6. Perfecting appeal, or filing transcript, by motion on notice to dis- 
miss appeal. 18 Cal. App. 464. 



287. The Trial Court can relieve a party from any judgment, order, or 
other proceeding taken against him by default through his mistake, in- 
advertence, surprise or excusable neglect, except, (11 Cal. App. 502.) 

1. Failure to issue summons, in one year or serve and return it in 
three years after complaint is filed. 

2. Failure to apply for change of venue. 

3. Defaults relating to provisional remedies. 

4. Failure to file notice of intention to move for new trial in time. 
162 Cal. 755 ; 23 Cal. App. 423 ; 4 Cal. App. 448. 

5. Failure to file memorandum of costs. 

6. Failure to file notice of appeal. 168 Cal. 396; 165 Cal. 372. 

Mav set aside judgment satisfied by execution. 165 Cal. 465 ; 23 
CaL App. 736; 162 Cal. 427; 161 Cal. 531; 150 Cal. 238; 168 Cal. 
736; 22 Cal. App. 7Z7 ; 14 Cal. App. 717; 6 Enc. PI. and Prac. 149; 
6 Stand. Proc. 824. 

7. Failure to file transcript in Supreme Court — it may excuse. 158 
Cal. 109, 117; 11 Cal. App. 677. 

8. Stockholder mav move to set aside judgment against corpora- 
tion. 150 Cal. 575. 

9. Party mav be relieved from a stipulation made in action. 82 Cal. 
508; 103 Cal. 6. 

10. Mav be relieved from failure to issue citation in one year on will 
contest. 168 Cal. 390. 



288. Such relief can only be ,2:rantecl in Superior Court when application 
therefor is made within reasonable time not exceeding six months 
after default taken, on these conditions: (162 Cal. 44; 157 Cal. 703; 
156 Cal. 576; 151 Cal. 394; 148 Cal. 137.) 

1. Application made l)y motion on notice to adverse party. 

2. Affidavits showing- grounds or reasons therefor, — or oral evi- 
dence. 168 Cal. 736'. 

3. Affidavit of merits or verified answer showing defendant has de- 
fense on merits. 166 Cal. 525; 157 Cal. 192; 167 Cal. 342; 21 Cal. 
App. 363 ; 149 Cal. 482. 

4. Copy of answer or other pleading proposed to be filed. 

5. Court mav impose such terms as it may adjudge reasonable. 151 
Cal. 352. ^ 

6. Granting of relief within discertion of Court. — not of right. 159 
Cal. 459 ; C.C.P. 473 ; 22 Cal. App. 149. 

Court cannot order deposit of monev obtained on execution judg- 
ment. 165 Cal. 220. 465, 786; 162 Cal. 747; 160 Cal. 486; 164 Cal. 
294; 167 Cal. 494; 23 Cal. App. 736; 18 Cal. App. 202. 464. 488; 1 
Stand. Proc. 655. 

7. Counter affidavits may be filed. 45 Cal. S3 : 96 Cal. 655 ; 99 
Cal. 324. 



289. Defendant served by constructive service, may have a judgment en- 
tered against him by default set aside at any time within one year after 
rendition of judgment; — 

1. Matter of right — not discretion of Court, on complying with 
these conditions. 

2. Application by motion on notice to adverse party. 

3. Show cause or ground by the record or affidavits. 

4. Affidavit of merits, or verified answer — showing defense, re- 
quired. 

5. Court may impose reasonable terms. 

165 Cal. 590; 151 Cal. 352. 98; C.C.P. 473; 160 Cal. 486; 157 Cal. 
196; 18 Cal. App. 723; 15 Cal. App. 728; 12 Cal. App. 445; 149 
Cal. 659. 



290. A default entered without jurisdiction or through fraud may be vacated 
and set aside. 

1. If without jurisdiction of Court over subject matter appearing on 
face of record, 

(a) By Court on its own motion at anv time before or after six 
months. 166 Cal. 528. 

(b) On application of party by motion on notice, without show- 
ing of any defense. 

(c) By separate action to enjoin execution of judgment, or to 
quiet title. 

2. If without jurisdiction over person of defendant because no valid 
service made. 12 Cal. App. 189. 

(a) On application by motion with notice within reasonable 
time — not limited to six months. 13 Cal. App. 61. 

(b) Affidavits showing want of legal service. 

(c) No showing of merits required. 18 Cal. App. 267. 

(d) Separate action to set aside judgment after six' months. 

3. If on ground default was obtained by fraud. 

89 



(a) On application by motion of party on notice within reason- 
able time, not exceeding six months. 149 Cal. 556. 

(b) File affidavits showing fraud. 

(c) Show merits or defense by affidavits or verified answer. 

(d) Separate action to set aside judgment within or after six 
months. 163 Cal. 726; 159 Cal. 729; 144 Cal. 410; 140 Cal. 
672; 148 Cal. 137; 149 Cal. 556; 150 Cal. 477; 148 Cal. 96, 
259; 97 Cal. 388; 103 Cal. 477; 152 Cal. 148. 

4. If on ground default prematurely entered, by similar motion but 
no affidavit of merits necessary. 20 Cal. App. 668; 10 Cal. App. 5. 



291. Justice Court may grant relief against default judgment when taken 
"by surprise, mistake, excusable neglect, etc., when application therefor 
is made. 

1. A\'ithin 10 days after notice of judgment. 

2. Bv motion on notice and affidavits as in Superior Court. C.C.P. 
859; 21 Cal. App. 301, 317; 19 Cal. App. 577; 74 Cal. 341 ; 109 Cal. 
336; 127 Cal. 45. 



90 



LECTURE 24. 

Provisional Remedies — Arrest and Bail — Attachment. 

294. A provisional remedy is a collateral ])roceeding allowed in a pending 

action before judp^ment in aid of the relief sou,2:ht therein. Those pro- 
vided for in California Code are: 

1. Arrest and Bail. 6. Deposit in Court. 

2. Claim and delivery. 7. Ofifer to compromise. 

3. Injunction. 8. Inspection of writings. 

4. Attachment. 9. Examination of party. 

5. Receiver. 

C.C.P. Sees. 478, 997. 1000. 2021. suh. 1. and 1991. 
12 Pac. 522; 104 N.W. 811; 1 C.J. 945; 32 Cyc. 742. 



Arrest and Bail. 

295. Arrest and bail means the seizure of person of defendant by order of 
Court in which civil action is pending, and his detention until he gives 
bail or is discharged by law or order of court. 
1. Proceedings are strictlv construed, and must be strictlv followed 
3 Cyc. 898-900; 130 Cal. 69; 2 Stand. Proc. 926. 



296. Order of Arrest may be obtained in civil action at following time : 

1. In Superior Court at time summons is issued or thereafter before 
judgment. C.C.P. 483. 

2. In Justice Court, only at time summons is issued and endorsed 
thereon. C.C.P. 861. 

3. Arrest after judgment see Sec. 425 (III) post. 

4. Arrest on supplementary proceedings see Sec. 433 (II 3) post. 



297. Order of Arrest may be obtained by plaintifif in Superior Court in fol- 
lowing civil actions : 

1. For money on contract, when defendant about to leave State with 
intent to defraud creditors. 

2. For fine or penalty or money misapplied by public officer or per- 
sons in trust capacity. 

3. To recover personal property, when concealed or disposed of to 
prevent being taken. 

4. Fraud in contracting obligation ; or in concealing or disposing of 
property. 

5. Defendant has removed or disposed of property to defraud cred- 
itors or about to do so. C.C.P. Sec. 479; 2 Cal. App. 752; 3 
Cyc. 901-925; 2 Stand. Proc. 926. 



298. Order may be obtained in Justice's Court in actions mentioned in items 
1, 2, first part 4 and 5 above, but no female can be arrested in anv ac- 
tion therein. 162 Cal. 621 ; 161 Cal. 632; 86 Cal. 70; C.C.P. Sec. 861. 



299. Order is obtained in either court by plaintifif performing following acts : 
1. File complaint and have summons issued. 

91 



2. Then make and file affidaxit of facts showing good cause of action 
in one or more cases above mentioned. 11 Cal. App. 370, 558; 2 
Cal. App. 752; 5 Cal. App. 115. 

3. Execute and file undertaking to defendant — $300 in Justice Court, 
and amount fixed by Superior Court. 

4. Then Court issues Order of Arrest. Justice Court endorses on 
Summons. 161 Cal. 632; C.C.P. Sees. 481, 482, 862; 120 Cal. 316; 
3 Cyc. 926-959; 86 Cal. 70; 130 Cal. 66. 



300. Order of Arrest is served by Sherifif of county where defendant is 
found, or in Justice Court, by constable of township where defendant 
is found. 

1. If in Superior Court, Sherifif — 

(a) Delivers to defendant copy of affidavit and copy of order 
when desired. 

(b) Takes him into custody and holds him until legally dis- 
charged. 

2. If in Justice Court, officer arrests defendant at time summons is 
served and must take him immediately to Justice issuing order, 
and give notice to plaintiff. C.C.P. 484, 485, 865. 863 ; 3 Cyc. 960- 
963. 



301. A defendant is discharged from the arrest at any time before execution, 
as follows : 

1. By giving undertaking of bail with sureties in amount fixed in 
Order. 

(a) To Sherifif in Superior Court, and Justice in Justice Court. 

2. By depositing with sherifif or Justice Court amount fixed in order. 

3. By paying plaintiff's claim, or by consent of plaintifif. 

4. By judgment in defendant's favor in the action. 

5. By Order of Court on motion of defendant to set aside and vacate 
order. 

(a) Motion made on notice to adverse party. 

(b) On any ground showing not proper case, affidavit, under- 
taking or other proceeding defective. 

6. On Habeas Corpus when Court without jurisdiction to issue, order 
of Arrest. C.C.P. 486-492. 863, 864, 497, 503. 504; 161 Cal. 632; 
120 Cal. 316; 3 Cyc. 964-980. 



Attachment 

302. An attachment is a writ issuing from Court in a pending action or- 
dering the seizure of defendant's property as security for the satis- 
faction of any judgment plaintifif may recover in the action. 
1. Law allowing strictlv construed and must be strictlv followed. 
C.C.P. Sec. 537; 11 Cal. App. 27; 148 Cal. 293; 3 Enc. PI. and 
Prac. 3; 3 Stand. Proc. 238; 4 Cyc. 395. 



303. Writ of attachment may be obtained in Superior or Justice Court at 
time issuing summons or at any time thereafter, before judgment. 
C.C.P. 537, 866; 144 Cal. 788. 

92 



304. Writ of Attachment may be issued l^y either court in following actions: 

1. Upon a contract, express or implied, for direct payment of money, 
against a resident. 22 Cal. App. 153. 

(a) Made, or is payable in this State. 13 Cal. App. 594. 

(b) Not secured by mortgage or lien or pledge upon property. 

(c) Or if originally so secured, such security has become value- 
less. 139 Cal. 638. 

2. Upon a contract express or implied against a non-resident. 142 
Cal. 138. 

3. To recover from non-resident damages fur injury to property in 
this State through negligence, fraud, or other wrongful act. 

4. In Justice Court, on claims exclusive of interest, exceeding $10. 
C.C.P. Sees. 537. 866; 97 Cal. 97; 120 Cal. 407. 

Against vessel. 157 Cal. 437; 4 Cyc. 410. 



305. The Writ of Attachment is obtained by plaintiff on following proceed- 
ings ; 

1. File complaint and have summons issued. 

2. Then, or at any time thereafter, file with Clerk or Justice ; 

(a) Affidavit showing facts set forth in Code (C.C.P. Sec. 538). 
168 Cal. 570; 13 Cal. Aop. 458; 12 Cal. App. 500, 694; 6 Cal. 
App. 272. 

(b) Make and file undertaking to defendant as required. 
157 Cal. 237; (C.C.P. Sees. 539, 867). 

3. Clerk or Justice then issues writ directed to Sheriff of county 
where property located, or in Justice Court, to constable of 
township where property located if in County. 

4. Justice-writ to be executed out of county is directed to a sheriff, 
and has County Clerk's certificate attached. (C.C.P. Sec. 868.) 
15 Cal. App. 447 ; 4 Cyc. 454. 

5. Several writs may be issued under one affidavit, undertaking, etc. 
150 Cal. 600. 



306. The execution of the writ and seizure of property may be prevented by 
defendants giving to the officer an undertaking w'ith sureties. 

1. In amount sufficient to satisfy plaintiff's demand, besides costs; or 

2. Amount equal to value of property which has been or is about 
to be attached. C.C.P. Sec. 540; 5 Cal. App. 740. 



307. If such Undertaking be not given, officer levies writ and seizes prop- 
erty in the manner and with the effect provided bv Code. C.C.P. Sees. 
541-548. 
Garnisheeing officer's salary. 158 Cal. 446, 451. 



308. After levy, the writ may be discharged and propert}^ seized released 
therefrom. 

1. By defendant giving undertaking to redeliver propertv seized. 
(C.C.P. Sees. 554 and 555.) 

2. By defendant recovering judgment in the action. (C.C.P. 553.) 

3. By officer on order of plaintiff or his attorney. (C.C.P. 560.) 

93 



4. By order of Court on motion of defendant upon notice to plain- 
tiff. 6 Cal. App. 272. 

(a) At any time before or after levy, or release of property on 
redelivery bond. 

(b) On ground writ was im])roperly or irregularly issued, or 
property exempt. 22 Cal. App. 133; 7 Cal. A])p. 732; 5 Cal. 
App. 522. 

(c) (/irounds shown by record, or affidavits. 

5. By showing officer property is exempt from lew. C.C.P. 690, 
540; C.C.P. 556-558; 4 Cyc. 769; 3 Stand. Proc. 747. 

6. Bv death of defendant. 29 Cal. 359; 47 Cal. 622; 50 Cal. 365, 367. 



309. When officer attaches property claimed by person not a party, he 
should — 

1. Give officer verified claim showing his right to propertv. (C.C.P. 
549, 689.) . . ^ 

2. Officer releases unless plaintiiT gives bond to hold. (C.C.P. 549, 
689.) 

3. If not released by officer on demand, 

(a) Claimant can bring action to recover possession or quiet 
title, or 

(b) Mav intervene his claim in action in which writ issued. 
109'Cal. 236; 114 Cal. 289; 122 Cal. 332; 10 Cal. 172; 4 Cyc. 
724; 3 Stand. Proc. 648. 



310. In either arrest and bail, or attachment, when order or writ be dis- 
charged by judgment for defendant, or by order of court on motion for 
being improperly issued, defendant can sue on undertakings for his 
damages. C.C.P. 482, 539; 165 Cal. 36; 2 Cal App. 170; 4 Cyc. 831. 



94 



LECTURE 25 

Provisional Remedies — Claim and Delivery — Receivers. 

313. "Claim and Delivery" is a ])rocee(linL;- by which plaintiff may claim de- 
livery of personal property involved in action, at commencement of ac- 
tion before jndgment obtained. C.C.l'. 509; 130 Cal. 263. 



314. Can be pursncd only in Actions of Rei^levin — for possession of per- 
sonal property — at time snmmons is issned, or thereafter before answer 
filed. C.C.]\'50'). 870. 



315. Plaintiff files with Sheriff (A County, if action in Superior Court, or 
such Sheriff' or Constable of township, if in Justice Court, where prop- 
erty is situated. 

1. Affidavit showino; facts recjuired by Code (C.C.P. 510). 

2. He or his attorney endorses on affidavit an order to take property 
from defendant. (C.C.P. 511.) 

3. Give officer an undertaking with sureties required by Code. C.C.P. 
870; (C.C.P. 512). 



316. Officer then executes order in following manner: 

1. Takes possession of property described in affidavit if in possession 
of defendant. 

2. Serves on defendant copy affidavit, order and undertaking. C.C.P. 
Sec. 512. 



317. After seizure and service of papers, defendant may take following pro- 
ceedings : 

1. Except to sufficiency of sureties on plaintiff"s undertaking. 

(a) If they fail to justify, property returned to defendant: or 

2. Within five days reclaim property by giving to officer an under- 
taking. 

(a) Plaintiff may except to his sureties, and on their failure 
property delivered to plaintiff. 

(b) If they justify property delivered to defendant. 

3. Temporary possession of either subject to final judgment. C.C.P. 
513-516, 521. 



318. If property taken is claimed by third person, it may be recovered by 
same proceedings as above explained in attachment. C.C.P. rl9. Sec. 
309 ante. 



Receiver. 

319. A receiver is a person appointed by the Court in an action to take hold 
and dispose of property involved therein, as ordered by the Court. 
1. Is the arm or agent of the Court to control property involved. 19 
Cal. App. 767. 

95 



320. There is no such thing as an action for a receiver, but a receiver can be 
appointed onlv in Superior Court in following actions pending: (5 Cal. 
App. 94). 

1. By plaintiff or other party interested when property or fund is in 
danger of being lost, removed, or injured. 

(a) By a vendor to vacate a fraudulent purchase of property. 

(b) By Creditor to subject property or fund to his claim. 

(c) Between partners or others jointly owning or interested in 
property. 13 Cal. App. 720. 

2. In action by mortgagee to foreclose mortgage and sell property. 

(a) When mortgaged property in danger of being lost, removed 
or materially injured, or 

(b) Condition of mortgage has nut been performed, and 

(c) Property is probablv insufficient to discharge debt. 164 
Cal. 58. 

3. After judgment has been made in an action. 

(a) To carry judgment into eft'ect. 130 Cal. 597. 

(b) To dispose of property according to judgment. 

(c) To preserve it during pendencv of appeal, or redemption. 
22 Cal. 191. 

(d) In aid of execution when returned unsatisfied or debtor re- 
fuses to apply. 153 Cal. 183; 26 Cal. 581 ; 78 Cal. 351. 

4. In actions involving corporations, by creditor, stockholder or 
member 

(a) A\'hen it has l^een dissoh-ed. 108 Cal. 431 ; but not before 
168 Cal. 727. 

(b) When insolvent, or in imminent danger becoming so. 5 Cal. 
App. 94. 

•(c) Has forfeited its corporate rights, 
(d) For purpose winding up its affairs. 129 Cal. 632. 

5. In all other cases where receivers are appointed by usages of 
Courts of Equity. 12 Cal. App. 343. 

6. Receiver should not be appointed when injunction or other remedy 
is sufficient. C.C.P. 564, 565; 22 Cal. App. 233; 16 Cal. App. 773; 
148 Cal. 254. 



321. At any time after commencement of action by filing complaint, a re- 
ceiver may be appointed by court or Judge before whom action pending:' 

1. On motion exparte — without notice — orally or in writing filed. 

(a) On verified complaint or affidavits or both, showing proper 
ground. 152 Cal. 746; 5 Cal. App. 94. 

(b) Must give bond in amount fixed by Judge to protect de- 
fendant. 

(c) Order entered appointing Receiver, fixing his powers and 
describing property to be taken. 5 Cal. App. 94. 

2. Or on Oral Motion, after notice served on defendant. 

(a) Serve with notice complaint or affidavits used to show 
proper grounds. 

(b) Defendant may oppose by answer, affidavits or evidence, etc. 

(c) If granted. Court may, but not compelled to, require plaintiflF 
to give bond. 

(d) If granted, order entered as specified above. 

96 



3. Or on order to defendant to show cause why Receiver should not 
be appointed. 

(a) Application for order, on complaint or affidavits as before. 

(b) Order made directing defendant to show cause at specified 
time and place. 

(c) Order, and pai)ers supporting application, served on de- 
fendant. 

(d) At hearing defendant may file affidavits, answer or present 
other evidence. 

(e) Plaintiff may file counter affidavits or evidence. 

(f) If granted, order appointing entered as before, with or with- 
out bond from plaintiff. C.C.P. 566; 164 Cal. 38; 13 Cal. 
App. 45, 30; 13 Cal. App. 370. 



322. After entry of Order of Appointment, Receiver must qualify. 

1. Take and subscribe oath of office and file same. 

2. Execute bond for faithful discharge of duties. C.C.P. 567. 



323. If Receiver appointed, defendant may pursue these proceedings : 

1. He mav appeal to Supreme Court from order within 60 davs there- 
after. C.C.P. 939. 

2. If Receiver appointed on exparte application, defendant should 

(a) Move to vacate and set aside order, on notice to plaintiff*. 

(b) With notice file pleadings, affidavits, etc., supporting motion. 

(c) If denied, then appeal from order appointing. 

3. Judgment for defendant in action, discharges Receiver. 

4. On discharge of Receiver, defendant may sue on bond given by 
plaintiff, for anv damages suffered bv appointment. 23 Cal. App. 
233 ; 19 Cal. App. 765. 



324. Receiver has only such power and authority as given by orders of Court. 

1. Must collect, care for propertv. and dispose of it on order of Court. 
138 Cal. 236. 

2. Can sue or be sued only by permission of Court. Sec. 117 ante. 

3. Must render accounts when directed, and on his discharge. 

4. Is responsible to parties on his bond and otherwise for faithful 
performance of duties. C.C.P. 568. 569, 570: 154 Cal. 444: 130 Cal. 
597. 

5. His possession of property protected by the Court. 168 Cal. 216. 

6. His title of propertv is same as party's from whom he takes. 168 
Cal. 241, 253. 



325. Receiver's compensation, attorney fees, and expenses are fixed and al- 
lowed by Court. 

1. Mav be paid out of funds in his hands, or (124 Cal. 525; 66 Cal. 
6060 

2. Taxed as costs against losing party; or (136 Cal. 646.) 

3. ^^"hen Receiver improperly appointed, must be paid by partv se- 
curing appointment. (116 Cal. 71 ; 129 Cal. 589; 149 Cal. 222.) 



97 



LECTURE 26. 

Provisional Remedies — Injunction. 

328. An Injunction is a writ or order by Superior Court or Judge thereof in 
pendini^- action recpiirino- a person to refrain from the act or acts therein 
specified. 

1. As to its effect.- classified into two kinds: 

(a) Preventive — to restrain cdinmission of acts in future. 
fb) -Mandatory — to undo what has been done or to ])erform acts 
in future. ' 100 Cal. 543 ; 155 Cal. 15. 

2. As to their duration, both kinds are divided into three classes: 

(a) Permanent — in or after judgment to continue permanently. 

(b) Preliminary — l)efore judgment to continue until trial and 
judgment. 5 Cal. App. 296. 

(c) Temporary restraining orders — to continue until application 
for Preliminarv Injunction is heard and determined. 101 
Cal. 218. 

This lecture applies onlv to last two. (Sees. 872-880 post.) C.C.P. 
52S-530; 22 Cvc. 740, 918, 953; 10 Enc. PI. and Prac. 983, 1027. 



329. A preventive injunction cannot be issued after commission of act, and 
a Mandatory Preliminary Injunction or Temporary restraining order 
can be issued onlv in extreme cases of irrepara'ole injurv and no adequate 
remedy at law. 'l67 Cal. 467; 145 Cal. 666; 158 Cal. 247; 163 Cal. 328; 
81 Cal. 148; 100 Cal. 543; 118 Cal. 330; 89 Cal. 26; 1.54 Cal. .581 ; 9 Cal. 
App. 716; 3 Pom. Eq. Jur. 1359; 22 Cyc. 742. 



330. The granting of a preliminary injunction or restraining order is not a 
matter of right, l^ut is within discretion of the Court. 163 Cal. 332 ; 161 
Cal. 106; 160 Cal. 713; 158 Cal. 247; 15 Cal. App. 751 ; 150 Cal. 592. 



331. Preliminary Injunction or restraining order may, under the Code, be 
issued after commencement of action and before judgment in following 
cases : 

1. In actions for injunction and complaint shows plaintiff entitled 
to relief. 14 Cal. App. 20; 151 Cal. 577. 

2. In any action, when it appears by complaint or afifidavits, com- 
mission of act, 11 Cal. App. 181. 

(a) Would produce waste or irreparable injury to a party to 
action. 

(b) A'iolate i>arty's right and tend to render the judgment in- 
effectual. 167 Cal. 467. 

3. AMien pecuniary compensation would not afford adequate relief. 

4. \\'here extremely difficult to ascertain amount of compensation 
affording adequate relief. 148 Cal. 723. 

5. Necessary to prevent a uiultiplicitv of judicial proceedings. 6 Cal. 
App. 524; 151 Cal. 254. 

6. Where the obligation arises from a trust. 

7. In actions bv tax-pavers to enjoin illegal expenditures, or waste 
bv public officers. l"52 Cal. 167; C.C.P. .526. 526a. 527; 165 Cal. 
255, 657 ; 18 Cal. App. 655 ; 164 Cal. 412 ; 149 Cal. 4.29. 

8. Against unfair competition. 158 Cal. 252. 

98 



332. Such injunction or order cannot he granted in any action for these pur- 
poses : 

1. T(j stay judicial proceedings then jjenchng, except to prevent mul- 
tiplicity of such proceedings. 139 Cal. 469. 

2. To stay proceedings in United States Court. 

3. To stay proceedings in another State u]Kjn a judgment in Courts 

of such State. 

4. To prevent execution of pul)lic statutes bv officers of law for public 
benefit. 152 Cal. 224; 148 Cal. 368. 

5. To prevent breach of contract, which canncjt be specifically en- 
forced. Sec. 874 post. 

6. To prevent exercise of public or private office by person in pos- 
session. 152 Cal. 224. 

7. To pre\ent legislative act by munici])al cor])oration. 

8. To restrain offering for sale, sale or issuance municipal bonds for 
public improvement or utilities. C.C.P. Sec. 526, 526a; Sec. 873 
post. 

9. To turn a party out of possession of property. 158 Cal. 247; 21 
Ca-l. App. 563. 

10. When party has an adequate remedy at law. 73 Cal. 3. 



333. No preliminary injunction or restraining order can be granted in any 
case on exparte application — without notice or order to show cause, — 
except : 

1. Before answer filed — none after. 

2. ^^'hen it appears by verified complaint or affidavits. 

(a) Great or irreparable injury w^ould result before hearing. 

(b) In water cases, the facts prescribed in C.C.P. 530. 

3. Applicant must give bond as required in C.C.P. Sec. 529 ; 146 
Cal. 31. 

4. Restraining order must contain order to show cause at day fixed 
whv preliminary injunction not issue. 

5. Complaint and affidavits served with the order, or two days be- 
fore hearing. 

6. Two days before hearing, applicant must serve memorandum of 
authorities. 

7. Applicant cannot, but defendant may, postpone hearing. 

8. Defendant may opi)ose application by answer, affidavits or other 
evidence. 

9. Applicant mav present counter affidavits or evidence. C.C.P. 
527: 161 Cal. 106. 



334. In all other cases, such injunction or restraining: order may be granted 
only on notice or order to show cause : 

1. If on notice, by following proceedings : 

(a) Applicant serves notice, complaint, affidavits or other papers 
to support. 

(b) Defendant at time fixed may present answer, affidavits, or 
other evidence to oppose. 

(c) No temporary restraining order is issued, unless defendant 
delays hearing. 

(d) If granted, preliminary injunction is issued, on applicant 
giving bond. 

2. If on order to show cause, by these proceedings : 

(a) Applicant applies for order exparte. 

99 



(b) With it presents complnint. files affidavits or other evi- 
dence to siip])ort. 

(c) Order to show cause at time fixed tlicn issued. 

(d) Order may or ma}- not contain tcinporary restrainins^^ order 
until hearing. 

1. If it does bond should be recpiired. 146 Cal. 31. 

(e) At time fixed defendant must show cause by answer, afiida- 
vits or other evidence. 

(f) Applicant may present counter affidavits or evidence. 

(g) If granted, bond must be required and then injunction is- 
sue. C.C.P. 527, 528; 21 Cal. App. 563; 15 Cal. App. 751. 



335. When such injunction or order is issued, the remedy or proceeding by 
party enjoined is the following: 

1. If granted on exparte motion — without notice, or with order to 
show cause. 

(a) Motion on notice to dissolve or set aside order, on pleadings 
and affidavits served. 150 Cal. 285; 152 Cal. 167. 

(b) For that purpose get time of notice shortened by order 
Court. 

(c) Or wait and oppose on hearing order to show cause. 

(d) If motion or opposition to dissolve denied, appeal from or- 
der C.C.P. 939; 158 Cal. 247; 148 Cal. 610. 

2. If granted on notice or order to show cause : 

(a) Make all objections at hearing. 

(b) Appeal from order granting. C.C.P. 939 ; 10 Cal. App. 168 ; 
2 Cal. App. 540. 

3. If issued without requiring or giving bond, or sureties not justi- 
fying— 

(a) Motion on notice to dissolve upon record or affidavits show- 
ing facts. 146 Cal. 31. 

(b) If denied, appeal from the order. 

4. Under what circumstances will be staved on appeal. See 161 
Cal. 239. 

5. Injunction not aff:'ected by filing amended complaint. 33 Cal. 
497; 152 Cal. 167. 

336. Preliminary injunction is afifected by final judgment in action. 

1. If in favor of party obtaining, injunction is merged into the judg- 
ment. 

(a) It is designed to maintain status quo until final judgment. 

(b) It is superseded by judgment and its execution or enforce- 
ment. 

2. If in favor of party enjoined, injunction is dissolved or terminated. 

(a) In effect it determines injunction not authorized 130 Cal. 
396; 17 Cal. 372; 159 Cal. 448. 

337. On the dissolution of an injunction, party enjoined has his remedy for 
damages : 

1. On any bond given by party obtaining injunction. 

2. Or against the" party alone without bond when injunction obtained 
maliciously. 

3. Can only recover attorney fees to obtain dissolution of injunction 
—not whole case. 6 Cal. 399; 110 Cal. 433; 63 Cal. 170; 20 Cal. 

App. 595. 

ICO 



LECTURE 27. 

Provisional Remedies. 

Deposit in Court — Offer to Compromise — Inspection Writings, Etc. — Exam- 
ination Party. 

340. Deposit in Court is allowing- or requirinp^ a i)arty in a pending action to 
deposit money or personal pro]:)erty capable delivery involved in the 
action, in Court, subject to the further direction of Court. C.C.P. 572; 
13 Cyc. 1031; 7 Stand. I'roc. 146; 9 Enc. PI. and Pr. 728. 



341. Such de])osit may be allowed by Court, and shovdd be made by party 
holding fund — 

1. In actions involving contlicting claims thereto, as Interpleader. 

Sec. 124 (4) ante; C.C.P. 386. 

2. In actions where payment of money or delivery property is in- 
cident to action and condition to obtaining relief therein — 

(a) Redemption from liens or sales. 

(b) Specific performance. 

(c) Rescission of contracts. 

(d) Action for price propertv sold, bv vendor having posses- 
sion. 103 Cal. 458. 

(e) Making tender good, except when deposited in bank prior to 
suit. C.C.P. 1030, 2074; C.C. 1500. 

3. In similar actions, to protect party from interest and cost. C.C.P. 
1030; 7 Stand. Proc. 147; 9 Enc. PI. and Pr. 729, 738. 



342. The deposit is eiTected by the following proceedings in pending action : 

1. Party holding property applies to Court by motion for order al- 
lowing deposit. 

(a) Exparte — if adverse party has not appeared. 

(b) On Notice — if adverse party has appeared. 

2. Made on pleadings and affidavit showing facts when necessary. 

3. If granted, order entered by Court allowing deposit. 

4. Property then deposited with Clerk of Court. 17 Cal. App. 759 ; 
7 Stand. Proc. 153-167. 



343. A deposit may be required by order of Court in following pending ac- 
tions : 

1. When the fund or property is the subject of litigation in the ac- 
tion, and 

2. It is admitted by pleadings or shown upon examination of a party 
to the action that 

(a) Fund or property is in his possession or under his control ; 
and 

(b) Held by him as trustee for another party to the action ; or 

(c) Which belongs or is due to another party. C.C.P. 572. 

3. It cannot be ordered or required — 

(a) When fund or property is a mere incident to action. 

(b) When party has not actual possession. 

(c) When party holding fund or property claims some interest 
in it. 146 Cal. 386: 71 Cal. 271 ; 51 Cal. 446; 13 Cyc. 1030. 

Court cannot order deposit monev obtained on execution of judg- 
ment vacated. 165 Cal. 465; 13 Cyc. 1034; 7 Stand. Proc. 149. 

101 



344. Order requiring" such deposit may be obtained on motion, or order to 
show cause, made only after one of two things appear : 

1. Pleading admitting facts is filed; or 

2. Facts shown l)y examination of party holding property, made 

(a) Before trial of action, by deposition. (C.C.P. 2021.) 

(b) At trial, and perhaps at hearing motion or order .show 
cause, produced as witness. 

(c) After judgment, under supplemcntarv proceedings. (C.C.P. 
714-21.) 

3. Motion then made on notice to such i)arty, based (»n pleading or 
examination ; or 

4. Ap])ly exparte, for order to show cause. Inised on pleading or 
affidavits for examination. 

(a) Order fixing time to show cause served. 

(b) At time fixed, party show cause and applicant make counter 
showing. 

5. If granted, order requiring deposit then made and entered. 

(a) Deposit then made voluntarily with Clerk of Court, or 

(b) Enforced bv contempt proceedings, or l:»v Sherifif. (C.C.P. 
574.) 

6. No appeal from order if made before judgment — reviewed on ap- 
peal from judgment. 

7. Party can refuse obedience, and have contempt proceedings re- 
viewed. 7 Stand. Proc. 153. 



345. Fund or property not disposed of by order, but only by judgment or 
subsequent order to parties entitled thereto, according to claims prop- 
erly established. 13 Cyc. 1038; 7 Stand. Froc. 167-173. 
Court cannot dispose of money not deposited. 158 Cal. 451. 



Offer to Compromise, 

346. Before action is commenced, a party may make tender or oft'er to com- 
promise and when sued keep ofifer good by deposit in Court; if party 
recovers no more than ofiter, cannot recover costs nor interest, — ofifer 
no evidence of admission. C.C.P. 1030. 2074-78: C.C. 1485-1505: 38 
Cyc. 1311 : 21 Enc. PI. and Pr. 543. 



347. At any time after action commenced, and before trial or judgment, de- 
fendant may ofifer to allow judgment as specified in offer: 

1. Must be in writing served on plaintTft', or his attorney if he has 
appeared. 

2. Must specify amount or terms ofit'ered. 

3. Must include cost previously incurred, unless ofifer was also made 
before action. 

4. Not required to deposit amount offered. 

5. If plaintifi^ accepts in five days, judgment entered by Clerk ac- 
cordingly. 

6. If not, offer withdrawn, in which event, 

(a) Plaintift' cannot recover, but pays cost, if recovers no better 
judgment. 

(b) Ofifer cannot be given in evidence. C.C.P. 997, 895 ; 84 Cal. 
214; 72 Cal. 393; 158 Cal. 514; 28 Cyc. 730. 

102 



Inspection of Writings and Objects. 

348. In any pending action, a party may procure an inspection and copy of 
any account books, or document, or paper material to claim or defense, 
in possession of another person, at any time before trial by these ])ro- 
ceedings : 
I. If in possession of party to the action: 

1. Serve on ])arty or his attorne\- demand for inspection and 
copy specifying books and papers. 

2. If refused, make motion for order of Court, ujjon notice to 
l)arty or attorney. 

3. Serve with notice affidavit of facts, and of refusal demand. 

4. If granted, order requires inspection and copy specifying 
books and papers. 

5. Serve copy order on party, with demand for compliance. 

6. Order enforced if not complied with, 

(a) By contempt proceedings, and 

(b) Exclude books and papers if ofifered by party in pos- 
session ; or 

(c) Presume as evidence effect claimed by party applying. 

7. Or take deposition of party imder C.C.P. Sec. 2020-2021. 

(a) Compel production at hearing by subpoena duces 
tecum. 

(b) Attach document or copy to same. 
II. If in possession of person not a party — 

1. Make request for inspection or copy; or 

2. Take deposition as in case of party specified above. C.C.P. 

Sec. 1000, 2020; 126 Cal. 235; 41 Am. St. Rep. 388; 140 Cal. 
69; 23 Cal. App. 663; 6 Enc. PI. and Pr. 784; 14 Cyc. 368. 



349. The inspection or production of books and papers at trial of action 
may be enforced, as follows : 
I. If in possession of party to action — 

1. Notice to produce specifving books or papers ser\ed on partv 
or attorney. C.C.P. 1938, 'l855, sub. 2. 

2. Subpoena duces tecum describing books and papers served 
on party. C.C.P. 1985. 

3. Depositions as heretofore indicated. C.C.P. 2021. sub. 1. 
II. If in possession of person not a party. 

1. By subpoena duces tecum served on person specifving pa- 
pers, etc. C.C.P. 1985; 15 Cal. App. 276. 

2. Depositions as heretofore indicated. C.C.P. 2021. 2024; 22 
Cal. App. 162 ; 17 Cvc. 457 ; 40 Cvc. 2166. 



350. Inspection and examination of other physical objects involved in action 
or in connection with material fact therein may be enforced in some 
cases. 
I. If in possession of a party — 

1. Court or jury mav inspect during trial. C.C.P. 610; 20 Cal. 
App. 158; 38 Cyc' 1313. 

2. Court by order mav compel inspection in some cases. 14 

Cal. App. 436; 31 L.R.A. 169 (Contra), C.C.P. 128, sub. 5. 

3. In personal injurv cases, bodv of injured person may be ex- 

amined. 150 Cal. 535; 19 Cal. App. 685; 14 Cyc. 364; 23 
L.N. S. 463; 15 L.N. S. 663. 

103 



4. Party may be compelled to produce movable articles by order 
or subpoena, etc. 41 Am. St. Rep. 393-4. 

5. In actions affecting real property, Court mav authorize entrv 
to make survey. C.C.P. 742, 1242. 

II. If in possession of a person not party, Court cannot order in- 
spection or production. cxcei:)t such as may l)e enforced by 
subpoena duces tecum. 14 Cyc. 368-381. 



Examination of Party. 

351. Any party to an action may be examined as to testimony at any time 
after service of summons or appearance of defendant. 

1. Before trial, by process of taking deposition. C.C.P. 2020, 2021, 
2024, 2031 ; Sees. 363, 364 post ; 8 Enc. PI. and Pr. 35. 

2. At trial, or hearing motion or issue in special proceeding. 

(a) Take deposition in same manner. 

(b) Require personal attendance by subpoena. 

3. After trial, by supplementary proceedings hereinafter explained. 
(Sees. 432-435 post) ; 14 Cyc. 339-363. 

Bill of Discovery usually abolished in Code States or Statute. 24 L.R.A. 
183; 139 Cal. 469; 149 Cal. 790; 8 Enc. PI. and Pr. 36; 14 Cyc. 339. 



104 



LECTURE 28. 

TRIAL. 

Setting — Continuances — Preparation for — Procuring Evidence. 

354. A trial is the examination l)ef(>re a competent tribunal according to 
law, of the facts or law, or both, put in issue, for the purpose of deter- 
mining the same. C.C.P. 588-592; 878-882; 17 Cal. 505; 67 Cal. 330; 
38Cyc. 1267; 135 Cal. 666. 



355. Trial of issues of law raised by demurrer, moti(jn to strike out, and 
motion for judgment on pleadings, made before trial of issues raised 
by answer to complaint, had by Court. 

1. In Superior Court, placed on Law Calendar. 

(a) Demurrer heard on law days without notice as fixed by 
rules. 

(b) Motions on law day fixed in notice. 

(c) Exparte motions, heard by presiding Judge according to 
rules of Court, or a Judge at Chambers. (Sec. 48 ante.) 

(d) Notice of rulings of demurrers must be given losing party. 
(C.C.P. 476). 

2. In Justice Court such issues are heard 

(a) Demurrer set by Justice and notice served on adverse party. 
(C.C.P. 850). 

(b) No notice of rulings thereon afterwards given. 109 Cal. 616. 

(c) Motions heard at time fixed in notice, or to which continued. 
C.C.P. 589-592; 878-881, 884, 593, 594, 850, 476. 



356. Trial of issues of law and fact raised on all other motions for intermedi- 
ate orders, provisional or incidental remedies, had by Court. 

1. At time fixed in notice, or to which continued. 

2. On the evidence specified in the notice. 

3. Such evidence may be by affidavits,, depositions, documents, or 
oral testimony. 

4. Referee may try such issues in some cases, as hereafter explained. 
Sec. 369 post. 



357. Trial of issues law or fact raised by answers to complaints, had 

1. Issues of law, by the Court, or Referee, as hereafter explained 
Sec. 369, 395 post. 

2. Issues of fact, by Court or jury, or Referee, as hereafter explained. 

3. Superior Court fix time for trial on law days : 

(a) By stipulation or on motion one party after notice to other 
party, if Court rules require — Code does not require notice. 
163 Cal. 338 ; 22 Cal. App. 23. 

(b) Notice of time set must be given, unless waived in Court 
or in writing i^led. C.C.P. 594; 159 Cal. 778. 

(c) If jury case, jury should be demanded or waived, or re- 
served at setting. 

4. Justice Court fixes time for trial at any time. 

(a) By stipulation or motion either party without notice. 

(b) Jury should then be waived or demanded. 

105 



(c) Notice of time set must l)e given, unless waived in Court or 

writing filed. (C.C.P. 850); 164 Cal. 150; 97 Cal. 523; 136 

Cal. 364; C.C.P. 591-594, 881, 882, 2101-2103. 

Separate actions may be consolidated for trial by order of Court 

when (a) between same parties or (b) causes of actions might 

have been joined. C.C.P. 1048; 165 Cal. 543; 150 Cal. 751. 



358. Trial of any issue when set may be postponed or continued by order 
Court, before, at. or during the trial — - 

1. By stipulation of parties or their attorneys for any reason; or 

2. By motion one party, on notice to other if before trial, on grounds 

(a) Attorney, party or principal witness actually attending ses- 
sion legislature. 

(b) Attorney, or party actually engaged in trial of another ac- 
tion. 

(c) Illness preventing attendance of attorney or partv. 21 Cal. 
App. 324. 

(d) Absence of material witness for sickness or other cause. 
C.C.P. 595; 159 Cal. 778; 23 Cal. App. 705; 144 Cal. 512; 
148 Cal. 577. 

3. With motion, serve and file evidence of facts showing grounds: 

(a) If illness, certificate of regular physician who has examined. 

(b) In other cases, affidavits, or oral evidence if Court will re- 
ceive. 21 Cal. App. 324. 

4. Absence of witness can only be shown by affidavits showing 

(a) Absence of witness and cause thereof, if knowm, his name 
and address. 

(b) What his testimony is expected to be — giving substance to 
show its materiality. 

(c) Facts showing due diligence by party to procure his at- 
tendance or deposition, etc. 22 Cal. App. 556. 

5. If adverse party admits testimony as stated in affidavit, no post- 
ponement granted. 

6. Court in granting postponements mav impose reasonable terms. 
152 Cal. 1. 

.v^ 7. If one party allowed to amend pleadings, other party may be al- 

lowed continuance to plead thereto, or to prepare for trial if new 
issues, without showing other cause. C.C.P. 595, 1029, 873-877; 
164 Cal. 693 ; 9 Cyc. 79 : 5 Stand. Proc. 441 ; 4 Enc. PI. and Pr. 824. 



359. Before or when an issue is set for trial, each party should make due 
and timely preparation for trial, and for that purpose should prepare 
and keep a trial brief showing 

1. Each question of law involved in the issue, in favor and against 
party. 

(a) Note how raised, and who has burden to sustain. 

(b) The citation of authorities to sustain or defeat. _ 

2. Each question of fact involved in issue for or against party. 

(a) Note how raised and who has burden of proof. 

(b) What evidence will be used thereon at trial. 

(c) Examine evidence and talk to witness where possible. 

3. Fix and determine theories to be followed in prosecution and 
defense. Sec. 492 post. 

106 



360. When ascertained what evidence will be required, proper and timely 
steps should be taken to secure and produce it at trial. 

1. Have maps, models, photographs, etc., prei)ared by competent per- 
sons. 

(a) Attendance such j^erson at trial to prove correctness. 

2. Secure orii^inals, certified copies or copies of books, documents, 
records, etc. 

(a) Competent witnesses to prove copies and documents not 
acknowledged before officers. 

3. Secure examination and inspection of party or documents, prem- 
ises or objects, etc. 

(a) Serve notice to i)roduce if in possession of party. 

(b) Serve subpoena duces tecum on i)arty or other person. 

4. Secure the testimony of witnesses. 

(a) By Affidavit. (b) Deposition. (c) Oral examination. 
C.C.P. 1981, 1869, 2002. 



361. The attendance of a witness at a trial and his oral examination may be 
secured. — 

1. By his voluntary appearance from any distance. C.C.P. 1990. 

2. By issuance of subpoena from Court where action pending and 
service on witness. C.C.P. 1985. 

(a) If in Countv, or out of Countv less than 50 miles from 
Court-house.' C.C.P. 1989. 

(b) May be served by any person, by delivering copv and show- 
ing original. C.C.P. 1987. 

(c) When demanded, must pav one dav fee and mileage. C.C.P. 
1987. 

(d) If subpoena disobeved, warrant for his arrest mav be ob- 
tained. C.C.P. 1993. 

3. If witness in prison, obtain order from Court for his production. 
C.C.P. 1995. 



362. An affidavit of a witness is a written declaration under oath, made 
without notice to adverse party, and may be used in following cases : 

1. To verify a pleading or paper in special proceeding. Sec. 147 ante. 

2. To prove service process, notice or other paper. 

3. To obtain provisional remedy, examination of witness or stay of 
proceedings. 

4. To establish facts in support of a motion, as heretofore mentioned. 

5. In other cases expressly permitted in Code. 

6. Cannot be used at trial issues raised by answer to complaint ex- 
cept in support of motions or other incidental matters just men- 
tioned. 

7. If witness refuses to give affidavit, can onlv be enforced bv deposi- 
tion. C.C.P. 2003, 2009-2015: 13 Cal. App.' 458. 

Need not be signed. 152 Cal. 190; 12 Cal. App. 500; 2 Cvc. 4; 2 
CJ. 317. 



363. A deposition is the written declaration of a witness under oath made 
upon notice to adverse party, and may be taken in following cases : 
I. When witness is without this State — 

107 



1. In an action, at any time after service summons or appear- 
ance defendant. 

2. In special proceedin.^'. any time after a question of fact has 
arisen. 

3. Where default has been made by any or all defendants. 

II. When witness is in this State, at any time after service summons 
or appearance c^f defendant, or in s])ecial proceedings, after ques- 
tion fact has arisen. 151 Cal. 732. 

1. When witness is a party, or officer or member corporation 
party, or real party in interest. 17 Cal. App. 720. 

2. Resides out of county, or in county, more than 50 miles from 
Court-house. 

3. Witness about to leave county, and continue absent. 

4. Witness too infirm to attend trial. 

5. Testimony required on motion, or other matter oral examin- 
ation not required. 

6. Witness only one who can establish fact ; deposition cannot 

be used if attendance witness can be procured at trial. C.C.P. 
2020, 2021, 2004; 7 Stand. Proc. 186; 13 Cyc. 832. 
Commission may issue and deposition taken pending appeal. 
155 Cal. 30. 



364. Such depositions are obtained by following proceedings : 
I. If witness is in this State — 

1. Serve notice on adverse party time and place taking and 
name officer. 153 Cal. 190. 

2. Serve with notice, affidavit showing proper case. 

(a) Five days before time fixed plus one day for each 25 
miles to travel. 

(b) Court may shorten time — copy order served with no- 
tice. 

3. Procure subpoena from Court County where witness resides 
and serve. 

(a) Obtained by order Court, on exparte application. 

(b) Clerk issues on the order. 8 Cal. App. 12; C.C.P. 1986. 

4. At time fixed witness examined orally by both parties same 

as in Court. 

(a) Questions and answers written out and signed by wit- 
ness. 

(b) Officer taking certifies, seals and returns to Clerk of 
Court. 151 Cal. 83. 

II. If witness is without the State— 

1. Make motion on notice for order to issue commission. 

2. Serve with it affidavit showing proper case to take deposi- 
tion. 

3. Also serve with it direct interrogatories or notice to take on 
oral interrogatories. 

4. At hearing adverse party serve cross-interrogatories, or no- 
tice to take orally. 

5. Order made and entered directing issue commission. 

6. Clerk issues commission to person who is to take deposi- 
tion. 23 Cal. App. 14. 

(a) Attached to it are interrogatories ; or 

(b) Notices to take orally. 

108 



7. Commission forwarded, deposition taken and returned as 
explained above. C.C.P. 2031-2038, 2024-2029. 
Issuance of commission may be compelled bv mandamus. 
133 Cal. 30. 

III. Depositions so taken ma}' Ije used ])y either party at any trial sub- 
ject to all objections except as to form of questions. 3 Cal. App. 
668; 7 Cal. App. 473 ; 151 Cal. 443 ; 153 Cal. 190; 133 Cal. 475. 
If a defendant refuses to ^ive his deposition, his answer mav be 
stricken out. 114 Cal. 212; 144 Cal. 155. 



109 



LECTURE 29. 

Trial — Before Referee. 

367. A Reference is the sending by Conrt in i)ending" action, one or more 
issues therein to a private person for trial, or ascertain facts and re- 
port. 

1. Such person, under Codes or Statutes, usually called Referee 
Auditor, or Commissioner. 

2. Similar to Master in Chancery, or Auditor in Common Law. 

3. Can be made only in Superior Courts — not justice Court. 34 Cyc. 
774; 17 Enc. PI. and Prac. 982. 



368. A reference may be ordered by two different methods. 

1. Voluntary — by stipulation of parties filed or entered in minutes 
of Court where action pending-. 

2. Compulsory — on motion either party or on Court's own motion. 
C.C.P. 638,' 639. 



369. A voluntary reference may be ordered at any time after issue raised 
and before, at, or during trial for the following purposes : 

1. To try any or all issues fact or law in action or proceeding and re- 
port findings and judgment. 

2. To ascertain anv fact necessary to enable Court to determine an 
issue therein. C.C.P. 638, 1507-1508. 



370. In such case, order of reference is obtained by following proceeding: 

1. File stipulation, or have it entered in open Court in minutes. 

(a) Specifying that order of reference may be made. 

(b) Number and names of Referees to be appointed. 

(c) If parties cannot agree on number or naines. Court may fix 
in order. 

(d) Specify purpose of reference and powers of Referee. 

2. Order then made according to stipulation, or fixing number, names 
and powers Referee. 34 Cyc. 777 \ \7 Enc. PI. and Prac. 987 



371. A compulsory Reference may be ordered at any time after issue raised, 
within time, and for following purposes : 

1. When trial issue fact requires examination long account. 

(a) To hear and decide whole' issue, or 

(b) Report upon any specific question of fact involved therein. 

(c) Ordered before, at, or during trial, except in jury cases. 

(d) Court cannot order Referee to report judgment thereon. 

2. When taking an account necessary for information of Covirt 

(a) Before judgment, or 

(b) To carry into effect judgment or order entered. 

3. When a question of fact arises, 

(a) Upon motion, or otherwise in any stage of action, 

(b) But not upon the pleadings. 

4. When necessary for the information of Court in a special pro- 
ceeding. 

5. Can never be made to deprive party right to jury trial. C.C.P. 

110 



639. 714, 1095. 761. 763. .^85. 1636. 1665. 636; .34 Cvc. 778; 17 Enc. 
PI. and Pr. 992. 
6. To divide or parlilion ])r()[)erty as ordered l)y Cnurt. 



372. A Compulsory Reference may 1)e ordered by f()lli>\vinj:^ proceedings: 

1. Either party make motion within proper time indicated. 

(a) After notice to adverse party, unless ])resent at trial. 

(b) Based on pleadintj^s or affidavits served witli notice, shf>\v- 
ing proper case. 

(c) Oral evidence received b\- Court, in place affidavits. 

2. At hearing, adverse party shoidd make all objections thereto. — 
not proper case, etc. 

(a) Mav make counter showing b}' aft"ida\it or other evidence. 

3. If granted. Court enters order, specifying number, names Ref- 
erees, purpose of reference, and powers of Referee. 

4. If on Court's own motion, a similar order is entered, with or with- 
out previous notice to parties, but notice afterwards, unless par- 
ties in Court when made. 

(a) Either party may move, on notice to set aside order, on 
ground not proper case. 

(b) Motion based on record, or showing by affidavit or other 
evidence. 34 Cyc. 791. 



373. Whenever a reference is ordered, the Court must appoint one or more 
not exceeding three, persons to act as referee. 

1. Any persons fixed and named in agreement of parties. 

2. If no agreement, Court fixes number and name any persons, 

(a) Who reside in County where issue is triable, except in cer- 
tain cases. C.C.P. 640. 

(b) Against whom there is no legal objection. 

(c) May refer to Court Commissioner of County where cause 
pending. 

3. \\^hen three appointed, all must meet, but two mav act. C.C.P. 
1053. 

4. One or all failing to act. Court mav remove and appoint others. 
C.C.P. 640; 34 Cvc. 804. 



374. Objections to the appointment of a person as Referee may be made by 
either party when appointment is made without consent : 

1. At time of appointment, if made on notice or when party is pres- 
ent. 

2. After appointment and before trial by Referee. 

(a) By motion to set aside, on notice to adverse party. 

(b) Based on affidavits or oral testimony showing facts of ob- 
jection. 

3. Such objections mav be made on anv grounds specified in Code. 
C.C.P. 641. 

4. Referee not required to take oath, uidess statute speciallv pro- 
vides. 34 Cyc. 807. 

Ill 



375. Referee has only such power and authority as delegated in order of 
reference. 

1. Should set time and place of trial. 

(a) By motion either party on notice, or 

(b) Own motion, with notice to parties. 

2. Receive and rule on admissibility of evidence. 

3. Trial conducted same as before Court without jury. 

4. May grant non-suit if trying all issues, and evidence insufficient. 

5. May reopen trial and receive additional evidence. 

6. Cannot allow amended or supplemental pleadings, or change is- 
sues. 34 Cyc. 810; 17 Enc. PI. and Prac. 1016. 



376. After conclusion of trial, the Referee must make his findings from the 
evidence and report same to Court where action is pending. 

1. Must be in form and substance similar to findings of Court in trial 
without jury. 

2. In trials of all the issues in a case : 

(a) Findings of facts and conclusions of law separately stated. 

(b) Such findings stand as findings of Court. 

(c) Judgment entered thereon same in trial by Court. 

3. In other cases, findings have the efifect of special verdict. 

(a) If adopted by Court, judgment entered as on special verdict. 

4. Findings cannot be waived by the parties. 

5. Referee not required to file or report evidence taken at trial unless 
so ordered. C.C.P. 643; 34 Cvc. 830; 17 Enc. PI. and Prac. 1033. 



377. On the filing of findings and report, either party may file exception 
thereto, and object to entering judgment thereon, on the grounds: 

1. Errors of law committed during trial or in conclusions of law. 

2. Fraud or irregularity in proceedings before Referee. 

3. But not that evidence does not sustain finding — only received on 
motion for new trial. C.C.P. 643, 645 ; 34 Cyc. 857 ; 17 Enc. PI. 
and Prac. 1043. 



378. Compensation of Referees and costs incurred in their proceedings are 
advanced by the parties, and taxed, as other costs in the action. C.C.P. 
1028; 34 Cyc. 892; 17 Enc. PI. and Prac. 1086. 



112 



LECTURE 30. 
Trial — By Jury. 

381. The California Codes provide for three kinds of juries. 

1. Grand Jury — to inquire into commission public ofYcnses. 

2. Trial Jury — to try and determine a question of fact. 

3. Jury of Inquest — to inquire of particular facts before Sheriff, 
Coroner, or other ministerial officer. C.C.P. 190-195. 



382. Trial jury in civil actions is a body of men summoned from citizens 
of a particular district before any trial court in a pending action, and 
sworn to try and determine issues of fact therein raised by complaint 
and answer thereto. 

1. Must be 12, or less by agreement parties in open Court. 

2. Jury when formed and sworn is part of Court. 

3. Jury decides only the facts — Court decides issues of law. C.C.P. 
193, 194, 592, 882 ; 24 Cyc. 94. 



383. Trial of issues of fact raised by complaint and answer in actions at law, 
or certain special proceedings, must be had by jury, unless waived by 
the parties, in — 

1. Actions to recover specific real or personal property, with or 
without damages. 

(a) Ejectment or quiet title, involving possession real property. 

(b) Replevin, involving possession personal property. 

2. Actions for money on contract. 

3. Action for damages for breach of contract. 

4. Action for damages for injuries to person or property. 

5. All civil actions in Justice or Police Court — with some limitation. 

6. This is matter of right, of which a party cannot be deprived. 

(a) Unless waived as provided by statute, or (Con. Art. I, 
Sec. 7.) 

(b) Fails to observe Rule of Superior Court regulating. 

7. In Special proceedings, when statute so provides. C.C.P. 592, 
882, 932 ; 24 Cvc. 100. 



384. In all such cases, jury trial is waived by a party as follows : 

1. By failure to appear at time fixed for trial after notice. 

2. By consent in writing filed, or oral, entered in minutes or docket. 

3. In Superior Court, failure to observe rule regulating. 19 Cal. 
App. 1. 

4. Same, by consenting to a reference. 

5. Same by failing to demand when set. or failure to deposit jury 
fees. 

6. In Justice Court, bv failure to demand before commencement of 
trial. C.C.P. 631, 883; Const. Art. I, Sec. 7; 164 Cal. 174; 24 Cvc. 
149. 



385. Trial of such issues in actions in Equity by Jury cannot be demanded 
of right, but may be granted, or denied, by the Court within its discre- 
tion. 

113 



1. Applies to issues of fact in any equitable claim or defense. 

(a) Known as such under principles of Fyquity practice. 

(b) Except as modiiied by Statute. 

2. Equitable defense to action at law, sin mid be i'lrst tried bv the 
Court. C.C.P. 592; Sec. 201 ante. 

3. But issues at law in an Equity suit triable by jurv. 91 Cal. 385; 
11 Enc. PL and Prac. 599; 24 Cyc. 111. 



386. Jurors in ci\il actions are selected and summoned as follows: 
I. To try issues in the Superior Court of each County ; 

1. January each year, Court ])y order fixes number re(|uired for 
ensuing year. 

2. Such number selected from citi/.ens residing in each town- 
ship of County, — 

(a) In some counties, by Court itself. 

(b) In others, by Board of Supervisors. 152 Cal. 71. 

3. List of those selected filed with Clerk of Court. 

4. Clerk writes names on slii)s of paper and puts in trial jury 
box. 

5. Periodically as required. Court orders Clerk to draw certain 
number from box. 

6. Clerk draws names in presence of Court, and records. 

7. List drawn given to Shcrifif wdio summons person to appear 
at fixed time. 

8. These names are placed on slips and put into another box. 

9. \A'hen case is called. Clerk draws twelve names from second 
box. 

10. If all drawn before a jury selected to try case, either 

(a) Other names drawn from the trial jury box and sum- 

moned, or 

(b) Court issues special venire for sufficient number. 155 

Cal. 712. 
II. In Justice Court of each township or city: 

1. Justice issues venire for required number. 

2. Summon by Sheriff or Constable from citizens of township 
or city. 

3. Their names placed in box and drawn out as in other Court 
C.C.P. 204-228, 230-232 ; 24 Cyc. 208. 



387. When jurors are drawn in an action, either party may before such 
jurors are examined, challenge or object to the whole panel on the 
grounds : 

1. Not selected or drawn substantially in manner required by law. 

2. Not summoned from the proper district. 

3. Not summoned by proper officer. 

4. The officer disqualified to summon jurors. 

5. Challenge made orally in open Court stating grounds and sup- 
ported by evidence. 

6. If sustained, new jurors selected and summoned. 

7. When denied, trial proceeds. 24 Cyc. 328. 



388. Persons to serve as jurors must possess certain qualifications, are 
entitled to exemptions or may be excused from serving as provided in 
the Code. 

114 



1. Certain qualifications to serve at all. C.C.P. 198. 199. 

2. Certain qualifications to serve in particular action. C.C.P. 602. 

3. Certain exemptions from service which he mav claim or waive. 
C.C.P. 200. 

4. May be excused 1)\' Cnurl for certain causes. C.C.P. 201 ; 24 Cvc. 
196. 



389. When action called for trial, the proceeding's should be taken in fol- 
lowing order : 

1. Either party move for continuance, judi^^mcnt on pleadings, or 
other act affecting continuing trial. 

2. If none, or denied, Clerk draws 12 names from Jurv box and ad- 
ministers oath to answer questions. C.C.P. 600. 

3. Either party may challenge panel ; or if none or denied, then, 

4. Plaintifi explains nature case and parties involved to jurors. 

5. Plaintiff, then defendant, questions all jurors as to qualifications. 

6. Either party may challenge any juror for cause shown by exam- 
ination. 

(a) Incompetent to act at all as juror, or 

(b) Disqualified to act as juror in pending action. 

(c) Not for exemption or anv excuse, for serving. C.C.P. 602, 
603. 

7. Adverse party may except to, or deny the challenge. 

(a) Exception — is demurrer to legal sufificiency of challenge. 

(b) Denial — raises issue as to sufficiency evidence to sustain. 

(c) On denial, any other evidence may be presented. 

(d) Court decides the challenge, and if allowed, another juror 
drawn. C.C.P. 603; 24 Cyc. 218, 247, 310: 149 Cal. 310. 

8. After 12 jurors passed for cause, each party alternately — plaintiff 
first — exercises peremptory challenge — without any cause. 

(a) All parties each side, have four peremptor}^ challenges. 

(b) On each challenge, vacancy is filled by drawing another 
juror. 

9. When 12 jurors — or number agreed upon — are thus selected, they 
are sworn to trv cause. C.C.P. 601. 604. 



390. After jury sworn, trial is conducted in substantially same manner as 
trial before the Court alone, as hereafter explained, except: (Sec. 399 
post.) 

1. Plaintiff' should make opening statement to jury. 

(a) Explaining the issues to be tried. 

(b) What plaintiff" expects to prove in the issues. 

2. Upon plaintiff"s opening statement, or his evidence, defendant 
. may move. 

(a) For non-suit dismissing action : or 

(b) Court to instruct jurv to render verdict for defendant. 147 
Cal. 506. 

(c) Onlv on ground evidence proposed, or introduced not entitle 
plaintiff recover. 164 Cal. 205 : 162 Cal. 471 : 24 Cal. App. 
675; 6 Cal. App. 369; 168 Cal. 618. 

3. If denied, at close plaintiff's evidence defendant makes similar 
statement to jury. 

4. Upon defendant's opening statement, or his evidence, plaintiff' 
may move — 

(a) For non-suit as to any counter-claim or cross-complaint, or 

115 



(b) Court instruct jury to render verdict for plaintiff, on same 
grounds. 
5. At conclusion of argument, Court charges jury as to law bearing 
on issues. 

(a) Instructions prepared by Court, or offered by the parties. 

(b) Those oft'ered by parties may be modified, allowed or re- 
jected by Court. C.C.P. 609. 

(c) Instructions must declare only the law — not facts. C.C.P. 
607-617, 2061, 2101 ; 38 Cyc. 1296, 1594. 



391. The decision of jury is called verdict, and may be general, or special, 
or both ; by three-fourths vote : 

1. General verdict — determining issues involved in favor of plaintiff 
or defendant. 152 Cal. 125. ^ 

2. Special verdict — finding facts only, leaving the judgment to the 
Court. 8 Cal. App. 226; 152 Cal. 125. 

3. In actions for money only, or specific real property, jury may 
render either in their discretion. 

4. In other actions. Court may direct jury to render either or both. 

5. Special prevails over general, when inconsistent. In such event, 

(a) Party may move Court to enter judgment according to spe- 
cial verdict, or 

(b) Move to set aside judgment entered against special verdict. 
C.C.P. 618, 619, 624-628; 165 Cal. 394; 163 Cal. 60; 159 Cal. 
49; 16 Cal. App. 465; 12 Cal. App. 214, 219; 152 Cal. 125 ; 9 
Cal. App. 718; 38 Cyc. 1868. 

392. Effect of Verdict upon Court in entering judgment: 

1. In actions at law, verdict is binding, and judgment must be en- 
tered. 

(a) By Clerk in accordance with general verdict. 

(b) Bv Clerk on order of Court, in accordance with special ver- 
dict. C.C.P. 628. 

2. In Equity actions, verdicts are merely advisory, and Court in 
rendering judgment may adopt them or not — in any event, must 
make findings as in trials before Court alone. 149 Cal. 722; 4 Cal. 
App. 326 ; 8 Cal. App. 423. 

3. In Justice Court, entered in Docket by Justice on Verdict. C.C.P. 
893 ; 161 Cal. 329 ; 16 Cal. App. 129. 



116 



LECTURE 31. 

Trial— By Court. 

395. When no reference, and jury vvai\e(l or denied, all issues raised in any 
action or proceeding's pendint^", must he determined hy the Court. 
1. In deciding" facts. Court acts with same power as jurv. C.C.P. 
592, 2103, 2061; 165 Cal. 117. 



396. When trial is called after proper notice, proceedings are had in follow- 
ing order : 

1. Preliminary motions affecting trial are made. 

2. Issues involved stated to, or determined hy Court. 

3. Evidence presented hy each ])arty, and ohjections thereto made. 

4. Motions for orders made during trial. 

5. Arguments hy parties at close of evidence. 

6. Findinefs made and filed. 



397. Any preliminary motion affecting the trial which either party may 
have, may be made at calling of case for trial. 

1. Motion for postponement of trial on grounds existing as hereto- 
fore explained. Sec. 358 ante. 

(a) May be made during trial if grounds arise later. 

2. Motion for judgment on pleadings, if not previously made. (Sees. 
179, 236 ante.) 

3. Objections to jurisdiction of Court over subject matter. (Sees. 
51, 52 ante.) 

(a) May also be made at any time afterwards. 

4. Motions to file amended or supplemental pleadings. (Sees. 253, 
267 ante.) 

5. Objections to qualification of Judge to try case. (Sec. 68 ante.) 



398. If such motions not made, or are denied, the issues should be stated 
and determined. 

1. Plaintiff read complaint, or state issues of his claims. 

2. Defendant read his pleadings, or state issues his claims or de- 
fenses. 

3. Or Judge may read all pleadings. 

4. Either party may move Court to determine and designate issues 
to be tried. 

(a) To determine sufficiency of pleadings filed to raise issue. 

(b) To determine whether proper pleadings are filed to raise 
issue. 

(c) Effect of order is to limit evidence to issues so designated. 
135 Cal. 431; Sec. 237 ante. 



399. Evidence affecting the issues, is then presented by each party in this 
order : 

1. Party having burden of proof must present all his evidence first. 

(a) Should relate only to issues he must prove to recover. 

(b) Should not anticipate issues adverse party must prove. 

2. Party has burden who holds afiirmative, or would be defeated if 
no evidence received. C.C.P. 1981, 1869. 

117 



(a) Plaintiff — on issues raised by denials to complaint, except 
payment. 

(b) Defendant — issues raised defense new matter, counter-claim 
or denials cross-complaint. 16v3 Cal. 272. 

(c) Burden may shift during trial bv evidence introduced. 12 
Cal. App. 90. 

3. When he rests, adverse party presents all his evidence. 

4. First part}- then presents evidence in rebuttal of opponents evi- 
dence. 

5. On motion, either party after resting may be allowed by Court 
to present additional evidence direct or rebuttal. C.C.P. 607, 2042, 
2050; 10 Cal. App. 770; 38 Cvc. 1349-1369, 1306; 15 Enc. PI. and 
Prac. 182. 376; 16 Cyc. 926. 



400. Evidence is presented by either party in following manner; 

I. Books, documents, maps, models, photographs, and other material 
objects. 165 Cal. 107; 159 Cal. 21 ; 165 Cal. 652; 167 Cal. 205; 162 
Cal. 531 ; 159 Cal. 225. 

1. First identified and showii correct by other proper evidence. 

(a) Books — bv person vv^ho kept them or made them. 5 
Cal. App. 620. 

(b) Maps, models, etc. — by person who made them. C.C.P. 
1936. 

(c) Other objects — by person familiar with them. C.C.P. 
1954; 163 Cal. 476. 

2. Documents, proven by evidence signed and delivered, or 
properly certified. C.C.P. 1948-1951. 

(a) Any alterations appearing on face must be explained. 
C.C.P. 1982. 

3. It must then be shown to adverse party for his inspection 
or examination. C.C.P. 2054. 2047. 

(a) He may be permitted to question witness identifying, 
etc. 

4. It must then l)e formally offered in evidence as Exhibit. 

5. Adverse part}^ must then object, if at all, to its reception as 
evidence, on grounds — 

(a) Not sufficiently identified as correct, or execution not 
proved. 

(b) Not proper evidence on issues involved. 

6. If first objection sustained, further evidence may be pre- 
sented and then re-offered. 

7. If objections overruled, exhil)it filed, and then read, or its 
reading waived. 

II. Depositions may be oft'ered and then read without preliminary 
proof except one instance, 

1. Adverse party may object to whole deposition as not prop- 
erly taken or certified, or 

2. To each question, as in oral examination. 

III. The oral testimony of witnesses. 

1. AA'itness called to stand and is sworn by Clerk or Judge. 

2. Party calling asks him questions in direct examination. 

3. Adverse party then asks him questions in cross-examination. 

4. Either party may be permitted by Court, to re-examine, di- 
rect or cross. 

118 



5. During- cxaniination. cither party may object to a question, 
or to witness testifying 

(a) Because witness not shown (juaUtied to testify. 

(b) No issue raised to which testimony relates. 

(c) Testimony offered iKjt com])etent evidence to prove is- 
sue. 

C.C.I'. 2044-2054. 2102; <S Enc. IM. and I'rac. 70; 38 Cyc. 
1326-1 34.S. 

6. Witness mav be imi)eached bv adverse partv. C.C.P. 2051, 
2052. 



401. Objections to evidence can be made only to its admissibility and not 
its effect, and at the time and in the form as follows: (168 Cal. 495.) 
I. As to time when may be made — 

1. Should be made when evidence offered, or else is waived. 

(a) Party can then afterwards move to strike out, on same 
or other grounds. 163 Cal. 611 ; 18 Cal. App. 479. 

2. Motion to strike out mav be made without prior objection. 
153 Cal. 781. 

(a) When answer witness is not responsive to question. 
3 Cal. App. 358. 

(b) When witness answers before objection can be made. 

(c) When ground of objection arises afterwards. 151 Cal. 
83, 411. 

II. As to form of objection — 

1. That question is leading, not proper cross-examination, or 
rebuttal. 

2. That evidence oft'ered is incompetent, irrelevant, or imma- 
terial. 

(a) Incompetent — not proper evidence to prove fact, be- 
cause, 

1. Hearsay or not best evidence. 

2. Not proper foundation laid, 

(a) Exhibit not identified or proven correct. 

(b) Witness not qualified to testifv. 6 Cal. App. 
475. 

3. Oral evidence ; required to be in writing. 

4. Oral evidence to vary writing, etc. 
fb) Irrelevant — not relating to issues involved. 

(c) Immaterial — relating to issue, but not tending to 
prove it. 

3. General objection alone not usually sufficient, except inad- 
missible for any purpose. 140 Cal. 94; 151 Cal. 83. 

(a) Particular objection must be added. 163 Cal. 272; 
C.C.P. 2102; Pom. Rem. 444 notes: 38 Cyc. 1372-1469; 
159 Cal. 187. 



402. Various motions may be made during trial without previous notice: 

1. To exclude witnesses from Court-room during trial. C.C.P. 125, 
2043 ; 38 Cyc. 1369. 

2. To postpone trial, where grounds therefor arise during trial. Sec. 
358 ante. 

3. To amend pleadings or file supplemental pleadings : 

(a) To meet or avoid objections to evidence. 

119 



(b) To avoid variance between pleadings and proof. 

(c) To cover any new claim or defense developed by evidence. 

(d) To avoid motion for non-suit. (Sees. 253, 267 ante) ; 168 
Cal. 783. 

4. For non-suit, or dismissal of a cause of action, but not defense. 

(a) By defendant — when plaintiff has burden of proof. 8 Cal. 
App. 647. 

(b) By plaintiff as to counter-claim or cross-complaint — when 
defendant has burden. 

(c) Must be made at conclusion of evidence by party having" 
burden. 

(d) May be renewed when evidence for defense is concluded. 
103 Cal. 251. 

(e) Motion made orally, the grounds must be specifically stated. 
17 Cal. App. 43. 

1. Evidence insufficient to prove claim, or defense shown 
by his evidence. 163 Cal. 663; 162 Cal. 513; 158 Cal. 
596; 22 Cal. App. 788; 18 Cal. App. 121. 

2. Pleading does not state a cause of action — is not al- 
lowed as ground. 19 Cal. App. 311 ; 141 Cal. 4. 

3. Material variance between pleading and proof. 18 Cal. 
App. 589. 

4. Court no jurisdiction of cause alleged or proven. 16 
Cal. App. 510. 

5. To reopen case for further evidence after party rests. 21 Cal. 
App. 487. 

6. To have Judge or jury view property, or place involved in aid of 
evidence. (Sec. 350 ante.) 

7. To permit experiments or demonstrations in aid of evidence. 38 
Cvc. 1311; 24 Cal. App. 81; 20 Cal. App. 158; 19 Cal. App. 328; 
15 Cal. App. 329, 534. 



403. When taking evidence concluded, argument presented by each party. 

1. Plaintiff always opens — whoever has burden of proof. 2 Cal. 
App. 24. 

2. Defendant replies — plaintiff closes. 

3. Argument may be waived by either, or both. 

4. Argument is either oral or in writing by briefs. 

5. Covers the evidence and the law relating to issues. 

(a) In jury trials, instructions control argument as to law. 
C.C.P. 607; 20 Cal. App. 615; 2 Enc. PI. and Prac. 699; 2 
Stand. Proc. 722; 38 Cyc. 1470. 



404. After argument, cause is submitted for Court's decision, expressed by 

1. Findings of fact and conclusions of law if not waived. 

(a) Only in Superior Court — not in Justice or Police Courts. 

2. If waived, or in Justice or Police Court, by entry of judgment. 
16 Cal. App. 153. 



405. Findings are waived and need not be made or filed. 

1. By either party failing to appear at the trial. 

2. By consent in writing filed, or oral in open Court entered in min- 
utes. 

120 



When evidence agreed upon or stipulated, or facts admitted. 163 
Cal. 503;C.C.P.634. 



406. Findings are prepared, signed and filed as follows : (C.C.P. 634.) 

1. May be prepared, and then signed and filed by Judge, or 

2. Court may order either party to prepare the findings, in which 
case, 

(a) Copy must be served on adverse parties 5 days before sign- 
ing. 

(b) He may propose amendments or file objections in 5 days. 

3. May be in separate document, or incorporated in judgment. 

4. Findings of fact and conclusions of law must be separatelv stated. 
157 Cal. 406. 

5. Only ultimate material facts in issue are found — not evidence nor 
adm'issions. 163 Cal. 243; 149 Cal. 667; 6 Cal. App. 469; 145 Cal. 
514. 

6. Findings must cover all material issues. 166 Cal. 501 ; 154 Cal. 
265; 15l Cal. 118. 

7. Successful party should give notice of decision to adverse partv. 
157 Cal. 406; 18 Cal. App. 349; 154 Cal. 478; 8 Stand. Proc. 993; 
8 Enc. PI. and Prac. 932. 

Findings outside issues disregarded. 166 Cal. 171, 441. 

Party introducing no evidence, cannot complain omission findings 

on issue. 166 Cal. 305. 



407. Where case is tried upon a certain theory, as to pleading or facts, par- 
ties are bound by it, and cannot thereafter assail it. 14 Cal. App. 193 ; 
16 Cal. App. 446; 141 Cal. 518; 108 Cal. 676. 



121 



LECTURE 32. 

Costs — Judgment. 

410. Costs are certain allowances by law ti) reimburse prevailing party for 
expenses incurred in prosecution or defense of action or proceedings. 
11 Cyc. 24; 61 N.E. 906; 23 Cal. A])p. 401 ; 20 Cal. App. 124. 



411. Trial costs are allowed such party upon judgment in his favor, as "Of 
course" in actions at law, and in discretion of Court in Equity actions. 
First: As of course in following: 

I. In Justice or Police Courts — in all cases. C.C.P. 924, 836. 
II. In all other trial courts in following cases: 

1. For recovery real property; and involving its title or 
possession. 24 Cal. App. 365 ; 149 Cal. 722. 

2. For possession personal property, in value $300.00 or 
more. 

3. For money or damages — to plaintifit only on recovering 
$300 or more. 125 Cal. 48; 167 Cal. 22; 21 Cal. App. 
664; 13 Cal. App. 781. 

4. In a special proceeding. C.C.P. 1032, 1134, 1135, 1174, 
1271, 809; 23 Cal. App. 401. 

5. Involving legality tax, impost, assessment, toll or mu- 
nicipal fine. C.C.P. 1021. 1022. 1023. 1024, 1026, 1139, 
546, 399. 

Second: In all other cases, costs mav be allowed or not, or appor- 
tioned by Court. C.C.P. 1025, 739. 
Third: In both cases, costs are not allowed in following: 

1. When tender made before suit, and party fails to re- 
cover more. C.C.P. 1030, 895, 977. 

2. When payment costs imposed as terms for opening de- 
fault, to amend, or for continuance. C.C.P. 1029, 469, 
470, 1173,472,473,859. 

3. When several actions are brought, instead of one. 
C.C.P. 1023. 

Probate Proceedings — contest will. 166 Cal. 147 ; C.C.P. 
1332, 1031. 1509, 1720; 150 Cal. 177; 152 Cal. 338; 164 
Cal. 663 ; 163 Cal. 343 : 24 Cal. App. 365. 



412. Items allowable must be necessarily incurred, and of following general 
nature : 

1. To Clerk or Justice legal fees for services in action or proceed- 
ing. 

2. To Sheriffs and Constable, legal fees for serx'ing process and writs. 

(a) Same fees to individuals serving summons or subpoena when 
allowed by Court. 

3. Such fees and keeping property in Provisional remedies. 

4. Xotarv and witness fees in taking depositions. C.C.P. 2025^ ; 23 
Cal. App. 401 ; 154 Cal. 36. 

5. Expense certified copies pul)lic records when required to be cer- 
tified. 

6. W'itness fees, and mileage when subpoenaed. 21 Cal. App. 112. 

(a) Onlv their fees actual attendance and testifving when not 
subpoenaed. (9 Cal. App. 434) : 15 Cal. App. 353. 

122 



7. Reporter's fees, and for transcribing testimony when ordered by 
Court. 

8. Fees and expenses receivers, referees and jury. 

9. Not allowed fees, experts, nor surveys, maps, models, etc.. unless 
ordered by Court. 9 Cal. App. 434. 

10. Not all(^wed attorney fees, in anv case, except fC.C.P. 726, 1251, 
532, 796, 798, 1510.) C.C.P. 1021'. 

(a) In suits on contracts providing therefor, or 

(b) In cases where some special ])r(n'ision of law allows same. 
C.C.P. 924. 

11. Premium on surety Company bonds not allowed. 156 Cal. 140; 
C.C.P. 274: 165 Cal. 469. 543; 20 Cal. App. 124. 661. 



413. Costs on appeal or other proceedings to review are allowed as "of 
course" to pre\'aiHng party. — 
I. Except when judgment modified, then within discretion Appellate 
Court. 
II. General nature costs allowal)le on appeal are all amounts paid out 
by such party. 

1. In connection with appeal. 

2. Preparation and printing record on appeal. 

3. Including cost printing briefs not exceeding $50. 

4. Appellate Court may reduce costs for unnecessary matter 
in record. 149 Cal. 167; C.C.P. 1027, 1034, 957, 980; 167 Cal. 
22, 7Z7 ; 20 Cal. App. 124. 

Not allowed against defendant in condemnation. 165 Cal. 
540. 



414. All such costs are allowed and recovered only in following manner: 
I. Costs in trial courts incurred up to judgment, — 

1. Prevailing party must serve on adverse party and file memo- 
randum costs — 

(a) Within 5 days after verdict, or notice decision of Court, 
or Referee, or (164 Cal. 300.) 

(b) Before entry judgment thereon, if entry stayed. 

2. Memorandum must be verified by party or agent, or his at- 
torney or his clerk and may be amended. 130 Cal. 389. 

3. Each item must be separately and distinctly stated in memo- 
randum. 

4. Within five days after service of memorandum, adverse party 
may 

(a) Move on notice to strike cost bill from files because 
not served or filed in time, or not verified, etc. 

(b) Move on notice to retax costs when any item is not 
correct or not allowable. 14 Cal. App. 31. 

(c) In either case, must sj'jecify particular grounds or rea- 
sons. 

(d) May support grounds by affidavit when defect does 
not appear on record. C.C.P. 1033; 165 Cal. 469: 23 
Cal. App. 758. 

5. If no objection made clerk or Justice inserts costs claimed 
in judgment. C.C.P. 585. 

6. If objection. Clerk or Justice inserts in judgment amount 
taxed by Court. C.C.P. 1035. 

123 



7. Doubtful filing memorandum required in Justice or Police 
Courts, but better practice. C.C.P. 896. 
II. Costs incurred after judgment, included in execution without mem- 
orandum. 
III. Costs on appeal arc recovered by prevailing party. 

1. Serve and file similar memorandum in trial court within 30 
days after remittitur filed. 

(a) Adverse party may move to strike or retax as before. 
150 Cal. 31. 

2. In appeals to Superior Court on fact and law, costs are re- 
covered in same manner as when case is tried there. C.C.P. 
1034. 



415. Security for costs is or may be required in following cases: 

1. In all cases in Justice or Police Courts for costs of Court, before 
issuing summons. C.C.P. 923. 

2. Probably in anv trial Court, defendant may require plaintiff to 
secure his costs.' C.C.P. 1036-1037, 925 ; 149 Cal. 487. 

(a) When plaintiff is a non-resident or foreign corporation. 

3. Defendant serves notice on plaintiff requiring security. 

4. On filing notice. Court stays proceedings until security given. 

5. Additional security may subsequently be required. 

6. If security not given as demanded, action may be dismissed. 

7. On appeal, appellant must always give security for costs, 

(a) Except from Superior Court, by alternative method, in which 
only security for cost of transcript to Clerk is required. 
C.C.P. 941, 953b ; Sees. 476, 478 post. 



Judgment. 

416. A judgment is the final determination of rights of parties in an action 
or proceedings as distinguished from interlocutory judgment or orders. 
C.C.P. 577 ; 167 Cal. 27 ; 159 Cal. 448. 
Interlocutory. 147 Cal. 355. 



417. Such judgment can legally be entered in one of following proceedings: 

1. By default in action or proceeding as heretofore explained. C.C.P. 
585, 871 ; Sec. 285 ante. 

2. By confession of the parties. 

(a) By writing filed or in open Court by party or attorney in 
pending action or proceeding. 

(b) By verified written statement of party filed with Clerk or 
Justice without action. C.C.P. 1132; Sec. 550 (1) post. 

3. By Court or Clerk on dismissal as heretofore explained. C.C.P. 
581 ; Sees. 279-282 ante. 

4. After trial on verdict of jury, or findings of Court, or Referee, as 
heretofore explained. C.C.P. 664, 667, 891 ; 16 Cal. App. 129; Sees. 
376, 392, 406 ante. 

5. May be entered by order of Court nunc pro tunc — 140 Cal. 178; 
165 Cal. 591. 

6. On mandate from Appellate Court. 112 Cal. 568; 139 Cal. 298. 



418. Essential formality of rendering or entering judgment is as follows 
I. In Superior Court. 

124 



1. May be in writing signed 1)\- Judge or Clerk and then filed ; or 

2. Without signing or filing, entered In; the Clerk. C.C.P. 664; 
124 Cal. 428. 

(a) On default, on verdicts or finriings, or other order of 
Court. 

(b) Entered, when recorded in judgment book. C.C.P. 668. 

(c) Docketed, when entered bv Clerk in his "docket." 
C.C.P. 672. 

(d) A\'ritten notice of entry of judgment should be given 
by prevailing to adverse party. 

II. In Justice or Police Courts, orally prononnced and entered in 
Docket. 161 Cal. 329. 
1. Written notice thereof given to defendant or his attorney. 
C.C.P. 911, 891, 892, 893. 
III. Appellate Courts, signed and filed, and sent to trial Court by 
remittitur. C.C.P. 958. 
1. On appeal from Justice Court in law and fact, judgment en- 
tered as when tried there. C.C.P. 980. 



419. General efifect of a judgment is as follows: 

1. Final as to Court when entered and until set aside. 

2. Final as to the parties either 

(a) WHien appeal taken, on determination thereof sustaining 

(b) Wlien no appeal, at expiration time to appeal. C.C.P. 1049. 

3. Before it is final, it abates any other action on same matter be- 
tween same parties or privies. 

4. When final, bars any other action on same matter between same 
parties or privies. 152 Cal. 138, 290; 148 Cal. 172; 153 Cal. 331. 

5. In Superior Court, it becomes a lien when docketed. 8 Cal. App. 
689. 

(a) On all real propertv of debtor in County where docketed 
for 5 years. C.C.P. 671 ; 160 Cal. 283 ; 14 Cal. App. 535. 

(b) In other counties on filing transcript. C.C.P. 674. 

(c) Lien ceases on filing stay bond on appeal. C.C.P. 671, 674; 
4 Cal. App. 610. 

6. In Justice Court becomes such a lien on filing transcript in any 
County for 2 years. C.C.P. 900. 

(a) May be renewed 2 years on filing new transcript. C.C.P. 900. 



420. Judgments may be enforced by following means: 

1. Issue writ execution, levy on and sale of property, thereunder. 

(a) Issued as of course within five years ; afterwards by order 
of Court obtained exparte. C.C.P. 681, 685 ; Sec. 427 post. 

2. By proceedings in contempt in some cases. C.C.P. 1209, 128. 

3. By appointment of Commissioner to execute certain acts required. 

4. Bv supplementary proceedings against debtor or other persons. 
C'C.P. 714-721. 

5. Filing transcript with County Auditor or other public officers 
owing judgment debtor. 3 Cal. App. 98. 

6. By another action. 99 Cal. 167. 



421. The execution or enforcement of a judgment may be stayed. 
1. By order of trial Court on motion exparte or with notice. 

125 



(a) By Superior Court not exceeding 30 days, without consent 
of creditor. 

(b) By Justice Court not more than 10 days. C.C.P. 901a. 

2. By making and filing stay bond, on appeal, or deposit in lieu of 
bond. C.C.P. 681a, 942-949, 978; 166 Cal. 325; 159 Cal. 448. 

3. By writ of Supersedeas from Appellate Court. 167 Cal. 27. 250; 
161 Cal. 239; 159 Cal. 516; 19 Cal. App. 634. 

4. Operation of a Mandatory Injunction stayed by bond or Super- 
sedeas. 155 Cal. 15. 

5. Not stayed by motion for new trial. 97 Cal. 546. 

6. If judgment affirmed on appeal, judgment may be entered against 
sureties in trial Court without notice. 60 Cal. 617; 67 Cal. 65; 
83 Cal. 571 ; 93 Cal. 266; 107 Cal. 193; 118 Cal. 113; 127 Cal. 560. 



126 



LECTURE 33. 

Execution — Supplementary Proceedings. 

424. An execution is a writ issued out of trial Court to Slicriff or Constable 
or appointed commissioner to enforce a judi;inent against the person or 
property of judgment debtor. C.C.P. 681 ; 131 Cal. 't^U \ 94 Cal. 220; 17 
Cyc. 921. 



425. When not stayed, execution may issue on judgments and for the pur- 
poses following: 
I. On judgments for payment of money or damages only — 

1. To satisfy by seizure and sale of judgment debtor's property 
not exempt. 

2. First, out of any personal proi)erty l>elonging to him. 

3. Then, if insufHcient, out of any real property belonging to 
him. 

4. Or out of any real property upon which lien exists by judg- 
ment or attachment. 119 Cal. 192. 

5. No execution issues when money or property is deposited 
with Clerk or Court to satisfy. C.C.P. 500; Sec. 545 ante. 

II. On judgments against real or personal property in hands of per- 
sonal representatives, heirs, devisees, legatees, tenants or trustees. 
1. To satisfy same out of such property. 
III. On judgments against the person of judgment debtor, — 6 Cal. 
57, 239;^ 10 Cal. 411 ; 36 Cal. 159. 
1. To arrest such debtor and confine him until 

(a) He pays judgment with interest, or 

(b) He is discharged according to law. C.C.P. 1143-1154; 
96 Cal. 233; 17 Cyc. 1490. 

IV. On judgments declaring a lien on real or personal property. 

1. To sell same or enough thereof to satisfy amount awarded. 

C.C.P. 726; 145 Cal. l^l\ 140 Cal. 190; 94 Cal. 217: 76 Cal. 

546. 
V. On judgment awarding possession of real or personal property. 

1. To seize same and deliver it to judgment creditor. 

2. No execution issues when such property is deposited in Court. 
C.C.P. 682-688; 17 Cvc. 924-936. 



426. Judgments requiring" performance of acts other than above designated 
are not enforced by execution, but in following manner : 

1. Certified copy judgment is served upon 

(a) Party against wdiom same is rendered. 

(b) Person or of^cer required therebv or b\- law to obev it. 
C.C.P. 684. 

2. Obedience thereto mav be enforced in contempt proceedings bv 
arrest and punishment. C.C.P. 1209; Sec. 435 post; 93 Cal. 140. 

3. If judgment requires disposition of property. Receiver may be 
appointed to perform. C.C.P. 564; Sec. 320 (3) ante. 

4. If judgment requires performance of some positive act. as 

(a) Execution of deed, mortgage, contract or other instrument 
transferring property. 

(b) Removal or construction of some structure, or physical ob- 
jects. 

127 



(c) Operation some business, railroad, or other enterprise, etc. 

(d) Commissioner, Referee or Receiver may be appointed to 
perform acts. 153 Cal. 183; 140 Cal. 190; 137 Cal. 84, 201; 
75 Cal. 413. 



427. Execution may issue after entry of judgment, and within time follow- 

1. As of course, within five vears thereafter, in Superior or Justice 
Courts. C.C.P. 681, 901 ; 105 Cal. 268. 

(a) By Clerk or Justice on exparte application of party entitled. 

2. After five years, in Superior Court, only by order of Court. 

(a) On motion exparte for that purpose, or 151 Cal. 488, 432, 
497 ; 6 Cal. App. 586. 

(b) By judgment founded on supplemental pleadings duly 
served. 

3. When returned unsatisfied, a new one may issue in same manner. 

4. In Justice Court, one issued may be "renewed" before return. 
C.C.P. 903 ; C.C.P. 685 ; 151 Cal. 488, 432 ; 159 Cal. 700; 2 Cal. App. 
659; 145 Cal. 529; 17 Cyc. 1034-1040. 



428. Execution may be issued upon application of party or against party as 
follows : 

1. Upon application of party in whose favor rendered, or his attor- 
ney, or assignee of such party. 56 Cal. 163. 

2. In event of his death, upon application of his executor or admin- 
istrator, or successor in interest. 151 Cal. 432. 

3. Issued against the judgment debtor or person against whom judg- 
ment rendered. 151 Cal. 488. 

4. In event of his death, it may issue 

(a) For recovery of real or personal property mentioned in 
judgment, or 

(b) For enforcement of lien on real or personal property. 

(c) But not to enforce payment money or damage against othei 
property. C.C.P. 686, 1505; 52 Cal. 345; 17 Cyc. 937-939, 
986, 991-997. 



429. Execution is directed to and must be carried out by following officers : 

1. Sherifif of County where property to be seized and sold is located. 

2. Executions may be issued to Sherififs of several counties at same 
time. 

3. In foreclosure mortgages, may issue to commissioner named in 
decree. 

4. In Justice Courts, may issue to constable of townships where 
Court located, or Sheriff of County. 102 Cal. 1. 

(a) If desired for other county, must file transcript Judgment 
with County Clerk who issues execution. C.C.P. 687, 726, 
902, 898, 905. 

(b) If defendant resides in other County, file transcript Judg- 
ment in Township of his residence. Justice there may issue 
execution. 17 Cyc. 987-991. 

128 



430. Execution is procured by party, delivered to officer to whom issued and 
then enforced by him as follows : 
I.. For foreclosure of lien on real or personal property. 

1. Officer pjives notice of time and place of sale as required by 
law. 101 Cal. 200. 

2. Sells, and issues certificate of sale. 

3. If real property, gives deed to purchaser if not redeemed. 

II. For delivery possession real or personal property. 

1. Seizes property and puts creditor in possession. 

III. If against the person of debtor. 

1. Arrests and takes into custody person of debtor. 

2. Confines him in jail until released bv Court or law. C.C.P. 
1143-1154. 

IV. For payment of money or damages enforced on other property. 

1. Party gives offiicer instruction what property to seize. 

2. Ol^cer levies on same, gives notice time and place of sale. 

3. Sells, gives certificate and deed as in foreclosure sale. 

4. If propertv of third party is seized, he may proceed as in 
attachments. Sec. 309 ante; 128 Cal. 617; 17 Cyc. 1199. 

5. Debtor may make claim for exemption as in attachment. 
Sec. 308 ante. 

V. In each case, officer returns execution to Court issuing with his 

certificate of proceedings by him. C.C.P. 691-713>^ ; 157 Cal. 410. 
Enforcing judgment against debt due defendant from municipal- 
ity. 22 Cal. App. 127 ; 3 Cal. App. 98. 



431. Execution may be recalled, quashed or set aside as follows: 

1. When staved after issue by giving bond, or by order of Court. 
166 Cal. 325, 563. 

2. When judgment upon which issued is void, or has been satisfied 
or discharged. 98 Cal. 355 ; 71 Cal. 183 ; 73 Cal. 5 ; 81 Cal. 202. 

3. When writ has not been properly issued, — 

(a) Debtor makes motion upon notice foi order to recall or 
quash stating grounds. 92 Cal. 393; 93 Cal. 120 

(b) File affidavit or other evidence showing grounds. 

4. By separate action to enjoin enforcement 130 Cal. 275. 

(a) In cases when motion could not be made. C.C.P. 946. 979", 
154 Cal. 17; 17 Cyc. 1135, 1152, 1169-1198. 

5. Sale under execution may be set aside for fraud or unfairness, — 
not inadequacy price alone. 151 Cal. 70; 144 Cal. 322; 23 Cal. 
226; 51 Cal. 552; 54 Cal. 346; 70 Cal. 297; 81 Cal. 362 ; 90 Cal. 182; 
72 Cal. 259; 17 Cyc. 1280-1287. 



Supplementary Proceedings. 

432. Supplementary Proceedings are those provided by Codes to be had in 
trial Court after an execution against property is issued in an action, 
and in aid of its enforcement. 

1, Are a substitute for Creditor's Bill in Equitv practice. 144 Cal. 
483; 153 Cal. 146. 

2. May be had against the judgment debtor, or any one or all several 
debtors. 

129 



3. May also be had ai;ainst any person or corporation. 

(a) Having" possession of property belonging to a judgment 
debtor, or 

(b) Is indebted to judgment debtor in amount exceeding $50. 
C.C.P. 714-721, 905; 100 Am. Dec. 500 note. 



433. Such proceedings against a judgment debtor may be had in the follow- 
ing manner : 
First. In Superior Court — 

I. When execution has been issued against property and returned 
unsatisfied. 

1. If issued to SherifTt of county where debtor resides; or 

2. If debtor resides out of State, issued to SherifT of County 
where judgment roll is filed. 

3. Oral exparte motion to Court for order directing debtor 
to appear. 

(a) Made on execution and return — no ai^davits filed. 
72 Cal. 513. 

4. Order made by Court for debtor to appear and be ex- 
amined at time and place specified, and served. 

(a) Before such Court or a Referee if debtor resides in 
that County, or 

(b) Before a Referee in County debtor's residence or 
place of business. C.C.P. 714; 7 Cal. 187. 

II. When execution has been issued against property but not re- 
turned. 

1. Oral exparte motion to Court for order to debtor to ap- 
pear 

(a) On afBdavit that debtor has property he unjustly re- 
fuses to apply on judgment. 

2. Order by Court for debtor to appear and be examined at 
time and place specified, and served. 

(a) Before Court or Referee as explained in other case 
above ; or 

3. Order to arrest debtor and bring him before Judge, 

(a) On afifidavit that there is danger of debtor abscond- 
ing. 

(b) Debtor may be ordered to give bond with surety, 
when brought before Judge. 

1. That he will attend Court when ordered, and 

2. Will not dispose of property not exempt. 

(c) In default of bond, debtor may be committed to 
prison until discharged. C.C.P. 715. 

III. In either case debtor is examined as to his property. 

1. Other evidence may be introduced bv witness, etc., at hear- 
ing. 41 Cal. 298. 

2. Court or Referee may order debtor to turn over property 
not exempt to applv in satisfaction of judgment. 

3. Court not required to make findini?;s. 119 Cal. 382. 

4. Receiver mav be appointed to sell propertv. 78 Cal. 351 ; 
26 Cal. 581 ; 72 Cal. 513 ; Sec. 320 (3) ante.' 

Second. In Justice or Police Court, same proceedings are had, ex- 
cept — 

1. Debtor ordered to appear before Justice issuing, if in 
County debtor's residence. 

130 



If debtor resides in County other than where judgment is 
entered 
(a) File abstract of judgment in Justice Court of town- 
ship where debt(jr resides. 
(bj Such justice then makes order f(;r debtor to appear 
before him. C.C.P. 903 : C.C.P. 718, 719, 721. 



434. Such proceedings against person or corporation having property of, or 
indebted to, debtor may be had as follows : 

1. After execution issued, and before or after its return unsatisfied. 

2. Oral exparte motion for order for such person or corporation to 
appear and be examined. 

(a) Made on affidavit showing possession of property or in- 
debtedness. 

3. Order made and served, requiring party to appear at time and 
place fixed. 

(a) Before Judge, or Referee, or Justice as in case against debtor. 

(b) If against corporation, directed to any officer, or member. 

4. Court may order any property or debt applied on judgment, ex- 
cept 

(a) When party claims interest in propertv or denies debt. 108 
Cal. 525; 86 Cal. 615; 26 Cal. 581. 

5. In last case. Court may by order, 155 Cal. 206; 23 Cal. App. 608. 

(a) Authorize creditor to bring suit to recover property or debt, 
and 

(b) Restrain party from disposing of same until such action is 
prosecuted to judgment. 5 Cal. App. 130; 7 Cal. App. 244; 
103 Cal. 525 ; 95 Cal. 386. 

fc) Justice Court cannot make restraining order. 

6. Third party may without order pay debt or deliver property to 
officer on execution. C.C.P. 716; 168 Cal. 32; C.C.P. 717, 719, 
720; 12 Cal. App. 274. 



435. Other judgments, and orders in supplementary proceedings are enforced 
by contempt proceedings. 
I. If in presence of Court, summarily by order finding facts and pre- 
scribing punishment. 151 Cal. 458; 76 Cal. 543. 

II. If not in presence of Court. 

1. File affidavit showing service of order or judgment and its 
disobedience. 163 Cal. 423 ; 158 Cal. 220; 18 Cal. App. 52 ; 154 
Cal. 534; 168 Cal. 216. 

2. Order made and served for debtor to show cause before 
Court at time and place, 

(a) Or attachment issued for his arrest. 

3. Party may file answer or plea to order. 

4. Matter is tried by Court as any other issue of fact. 

5. If adjudged guilty of contempt. Court may 

(a) Impose a fine or imprisonment for limited period, or 

(b) Imprison, until he performs act required, if still able 
to do so. 

6. No appeal from judgment of contempt. 

(a) Matter may be reviewed on Ilabeas Corpus. (Sec. 745 
post) ; C.C.P. 1209-1222, 906-910; 160 Cal. 378; 126 Cal. 
235 ; 93 Cal. 140. 

131 



LECTURE 34. 

Exceptions — How Made and Preserved. 

438. An exception is an objection upon matter of law to a decision by a 
court, tribunal, judge, or judicial officer, in an action or proceeding. 
Its purpose is 

1. To call attention to error claimed. 

2. To show that party against whom made does not consent to 
decision. 

3. To prepare record that decision may be reviewed by same or 
higher court. C.C.P. 646 ; 8 Enc. PI. and Prac. 153. 



439. The following rulings or decisions, whenever made are by the code 
deemed excepted to, and as to them no exception need be taken or 
entered by party at time made. 

1. The verdict of the jury (general or special.) 

2. Final decision in an action or proceeding (findings and judg- 
ment). 

3. Interlocutory order or decision finally determining rights of par- 
ties, or some of them. 

4. An order or decision from wdiich an appeal may be taken. C.C.P. 
963. 

5. Order sustaining or overruling a demurrer. 

6. Allowing or refusing an amendment to a pleading. 

7. Striking out a pleading or portion thereof. 

8. Refusing a continuance. 

9. Order made upon exparte application. 

10. Giving, or refusing, or modifying an instruction to jury. 

11. Order or decision made in absence of a party. 

12. Order granting or denying motion for non-suit. 

13. Order granting or denying motion to strike out evidence or testi- 
mony. 

14. Sustaining or overruling an objection to evidence. C.C.P. 647, 



440. An exception to all orders or decisions other than those above men- 
tioned must be entered by a party at the time made, if the party is 
then present ; and if not so made, are waived and cannot be afterwards 
reviewed. For example, 

1. Granting or denying motion to set aside service of summons. 

2. Granting or denying motion to relieve party from default before 
judgment. 

3. Granting or denying leave to file Intervention, Cross-complaint, 
or supplemental pleading. 

4. Granting or denying order to arrest defendant. 

5. Granting or denying order for deposit. 

6. Granting or denying order of reference. 

7. Granting a continuance, etc., etc. C.C.P. 646, 647; 154 Cal. 299; 
153 Cal. 781. 

8. Order refusing to strike out a pleading. 98 Cal. 281. 

9. Order granting judgment on pleadings. 11 Pac. 744. 

132 



441. The exceptions above mentioned are made and entered as follows: 

1. Before order or decision, party moving must specify grounds, with 
papers or evidence su])porting. 

2. Before order or decision, adverse party must specify particular 
objections thereto, if notified. 

3. After order or decision has been made, losing party 

(a) Says nothing when decision is deemed excepted to as above 
explained. 

(b) Otherwise he orally states "defendant (or other party) 
excepts." 

(c) It is noted by reporter if one. otherwise by Clerk in minutes. 

4. It can then be preserved on record for review only by a proper 
document settled and filed as hereinafter explained. 154 Cal. 685. 
Rule XXIX Supreme Court. C.C.P. 648; 153 Cal. 796. 



442. This document is a formal statement in writing duly signed, settled and 
filed showing the decision made, the proceedings and facts upon which 
based, and the exception entered. 

1. Generally called a "Bill of Exceptions." C.C.P. 649, 650. 

2. Sometimes called "Statement of Case'' or "Statement of Facts," 
etc. 

3. Also "Certified Transcript" in alternative method of appeal. C. 
C.P. 659, 953a, 950. 



443. Separate Bill of Exceptions, Statements, or Transcripts, must be made 
for each decision made before trial, or after judgment, and one for all 
decisions made during trial to entry of judgment; except 
First: All decisions or questions shown by judgment roll, which are 

1. Decisions on demurrers to pleadings. 

2. A\"hether judgment supported by pleadings, or findings. 

3. A\'hether Court has jurisdiction subject matter. 

4. In default judgment, whether Court had jurisdiction over par- 
ties. C.C.P. 956. 

Second: Whether required on motion judgment on pleadings, de- 
cided both ways. 11 Pac. 744; 72> Cal. 599. 

Third : Required on order striking out pleading or parts thereof. 123 
Cal. 77. 



444. Document showing exceptions to decision made before trial or after 
judgment is called "Bill of Exceptions," and must be prepared and 
served : 

1. Any time after decision but within 10 days after notice thereof. 

2. Time mav be extended any time by stipulation of parties. 

3. Time mav be extended 30 davs bv Court. C.C.P. 649, 1054 ; 167 
Cal. 494. ' 



445. Document showing exceptions to decision made during trial to judg- 
ment on issues raised by complaints and answers is called: 

1. "Bill of Exception" for use on appeal from judgment bv regular 
method. 150 Cal. 124. 

2. Certified Transcript — for use on appeal l)v alternative method. 
161 Cal. 118. 

133 



3. Must be prepared and served within ten days — 

I. Bill of Exception or Statement used on appeal froiu judg- 
ment. 

(a) After entry judgment on verdict, or 

(b) After notice entry judgment on decision of Court. 

(c) Time may be extended as above explained. 

(d) After notice of decision determining ])roccedings for 
new trial. C.C.P. 650. 

II. Certified Transcript prepared as hereafter explained in lec- 
ture on appeal. Sec. 479 post. 
III. Bill of Exception after ruling on motion for new trial must be 
prepared and served. 

(a) For new^ trial within ten da\'s after notice of decision 
of order on motion. 

(b) Time mav be extended as in other cases. 150 Cal. 
336; 6 Cai. App. 58 ; 9 Cal. App. 759; 6 Cal. App. 58. 

(c) Statement settled for motion new trial may be u-sed 
on appeal from judgment. 150 Cal. 764. No longer 
of value. C.C.P. 650, 953a, 1054, 950; 13 Cal. App. 
689. 

446. There is no prescribed form for such Bill of Exceptions or Statement 
but it should contain title of court and cause, and also in substance, 
I. When on decision before main trial or after judgment made on 
motion of party — 

1. Statement of proceedings taken. 

2. Copies or substance of moving papers, when served and filed. 

3. Fact it was presented and heard, and date thereof. 

4. All objections made by the adverse party at hearing. 

5. Copies or substance all papers, pleadings and evidence used 
at hearing. 

6. The decision of the Court, Judge or Referee. 

7. The exceptions taken by losing party. 161 Cal. 118. 
II. When on such decision luade by Court without notice. 

1. All proceedings, pleadings, evidence, etc., on which decision 
made. 

2. The decision or order made and date thereof. 

3. Exception taken or objections made, or state circumstances 
showing an exception deemed made by law. 

III. When on decisions during main trial to judgment. 

1. wStatement of nature proceedings and date thereof, and be- 
fore what tribunal. 

2. All papers, evidence and proceedings upon which decisions 
based. 24 Cal. App. 615; 20 Cal. App. 75; 148 Cal. 102. 

3. All objections made by adverse party. 

4. All rulings and decisions objected to, and the exceptions 
taken. 

5. AMien exception is to verdict or decision on ground it is not 
justified by evidence, must specifv particulars insufficiencv 
of evidence. C.C.P. 648. 150 Cal.' 124. 

6. No pleading or paper made part of Judgment Roll need be 
stated. 

7. If prepared for or after motion for new trial, must recite giv- 
ing notice of intention and grounds thereof. 167 Cal. 594 ; 
163 Cal. 427; 16 Cal. App. 765; 153 Cal. 307. 

8. If numerous decisions, should number them consecutively as 
exception 1, 2, etc. 

134 



IV. In all cases, should then request settlement thereof,^ and be 
signed bv party proposini,^ or his attorney. C.C.P. 650, 659. 

447. The Bill of l£xception or Statement is settled l)y the following pro- 
ceedings : 

1. Moving party prepares and serves same on adverse parties or at- 
torneys within time stated. 10 Cal. App. 762; 149 Cal. 173; 151 

Cal. 242. 
(a) Copv given to adverse party and original retamed by mov- 
ing party. 

2. Adverse party then may propose amendments withiu 10 days 

after service. - i io 

(a) Amendments in writing specifymg particlars thereof. 148 

Cal. 451. 

(b) Original served on moving party and copy retamed. 

(c) Time for serving amendments may be extended as in other 
cases. 

3. If moving party adopts proposed amendments then 

(a) Same are" engrossed and amended as proposed. 

(b) Then presented to Judge, Referee or proper officer for set- 
tlement without notice. 13 Cal. App. 478. 

4. If no amendments proposed, bill is presented for settlement with- 
out notice. 

5. If amendments not adopted and bill is to be settled by Judge ot 
Court, moving party may either — 

(a) Leave bill and amendments with Clerk for Judge without 
notice within ten days. 155 Cal. 53 ; 151 Cal. 242. 

1. Judge fixes time for settlement and Clerk notifies both 
parties. 

2. At time fixed, judge hears parties and decides what 
shall be put in.' 24 Cal. App. 777; 20 Cal. App. 75. 

3 If any amendment allowed, bill is engrossed to cover, 
or if none allowed. 2 Cal. App. 271; 152 Cal. 697. 

4 Then signed bv judge or settled and then filed with 
Clerk in case. 'l59 Cal. 541, 628. 

(b) Or may present bill and amendments to Judge within ten 
days : 

1. Upon five days prior notice thereof served on adverse 

partv. 

2. At time specified, present to Judge and have it set- 
tled and filed as before. 

6. If amendments not adopted and bill is to be settled by Referee 
or of^cer other than Judge then 

(a) It must be presented to such officer within 10 days after 
amendment served. 

1. Upon 5 days prior notice to adverse party of time and 

place. 
2 Then presented, settled and filed as in other case. 
C.C.P. 650. 659. 



448. Objections may be made to settlement or use of bill or Statement as 
follows : 
1. To its settlement. at time presented therefor, when 

(a) Not served in time provided, or 

(b) Not presented for settlement within time or manner pre- 
scribed. 

135 



(c) But not on ground it is incorrect or does not contain all 
papers or evidence. 

2. If objection is sustained, moving' party may move to he relieved 
from default. 

(a) Because of mistake, inadvertence, excusable neglect, etc. 

(b) Present affidavit, showing" facts. 

(c) Without notice if made at hearing settlement bill, other- 
wise on usual notice. 

3. In certificate settling or disallowing bill, Judge should state all 
proceedings taken, objections made, relief granted or denied, and 
his decision thereon. 167 Cal. 494; 17 Cal. App. 324. 

4. To its use in trial or Appellate Court, when it appears on Judge's 
certificate it was not settled in time or manner prescribed. 125 
Cal. 51 ; 167 Cal. 497; 155 Cal. S3: 23 Cal. App.' 126, 159. 



449. Bills and Statements are settled b}^ the Judge, Referee or officer who 
tried the matter and rendered the decision excepted to. 

1. Even after he has ceased to hold the office. 

2. Where Judge or officer dies, is removed from office, disqualified, 
resigns or absent from State, 

(a) Settled by his successor, or by any Judge of same or ad- 
joining county. 

3. When Judge or officer refuses to settle bill or allow exception, 

(a) On refusal to settle any bill, compel action by mandamus 
proceedings. 20 Cal. App. 75 ; 97 Cal. 258. Sec. 606 post. 

By filing Petition therefor in Supreme or District Court Appeal. 

(b) On refusal to allow an exception which on facts should be 
allowed. 

1. Petition Supreme Court to allow, showing exception, evidence 
and proceedings supporting. 

2. Serve notice thereof on adverse partv and the T^-^dge refusing. 
68 Cal. 414. 

3. Exception settled In' Chief lustice and certified, and filed with 
Clerk trial Court. C.C.P. 652, 653, 659; 129 Cal. 141 ; 153 Cal. 103. 



450. W'hen bill or Statement is settled or disallowed, a certificate signed by 
Judge, Referee or officer is attached thereto to that effect. 

1. If allowed certificate states "The foregoing bill of Exception (or 
Statement) is hereby settled, and allow^ed as correct." 

2. If rejected "The foregoing Bill of Exception (or Statement") is 
disallowed." 

3. Certificate should show facts, proceedings, etc. 

(a) Where bill or statement is disallow^ed. 

(b) Where allowed and objections thereto are made and over- 
ruled. 

(c) Where objections sustained but moving party excused from 
default and bill settled. 150 Cal. 258. " 



4. Bill or Statement should not be disallowed — 

(a) When incorrect or not full or complete. 

(b) Moving party should be recpiired to make correct so as to 
speak truth. 80 Cal. 483. 

136 



LECTURE 35. 

Reviewing Orders or Decisions by Trial Court. 

New Trial — Changing Judgment. 

453. By reviewing orders or decisions Ijv trial Court is meant a reconsidera- 
tion of the law or facts upon which an order or decision is based, to 
determine whether any error was committed therein. 

1. In general way applies to reconsideration of decisions for any 
cause. 

2. The expression usually applied only to recr)nsideration of 

(a) Facts and proceedings upon which verdicts or findings are 
based. 

(b) Judgments entered upon verdicts or findings. C.C.P. 656; 
14 Enc. PI. and Prac. 707. 



454. A Court has inherent power to reconsider and vacate or set aside for 
good cause any order or judgment made in a proceeding, but the Codes 
limit the exercise of the power. 29 Cyc. 722; 116 Cal. 193. 

1. Any order or judgment void on its face, may be set aside at any 
time. 

2. Any order or judgment may be vacated or changed to correct 
clerical errors at any time as heretofore explained. 141 Cal. 573 ; 
154 Cal. 355. (Sec. 259 ante) 

3. An order or judgment voidable for other cause de hors record can 
be reviewed and vacated. 

(a) Only on motion as heretofore explained, for vacating de- 
faults, or 

(b) On motion for ne\v trial as hereafter explained. 

4. Any other Interlocutory orders and judgments may be vacated 
or changed at any time during progress of proceedings and before 
final judgment therein. 10 Cal. App. 168. 

(a) Except appealable orders after appeal taken. 

5. Other final orders or judgments can be reviewed and vacated onlv 
as hereinafter explained." C.C.P. 128; 15 Cal. App. 50; Sees. 258. 
259 ante. 



455. All orders or decisions made exparte — without notice — may be re- 
viewed and set aside. 

1. By the Court on its own motion, without notice, or 

2. On motion of one partv after notice to the other. C.C.P. 937; 
46 Cal. 31: 150 Cal. 147.' 



456. No method is provided for reviewing, on application of party, orders 
made on motions upon notice ; motions denied or granted conditionally 
cannot be renewed, except: (99 Cal. 270; 54 Cal. 489.) 

1. When denied for some informalitv in proceedings, or 

2. With leave of Court to renew. 69 Cal. 634; C.C.P. 182, 936; 125 
Cal. 15; 11 Cal. App. 497; 15 Cal. App. 500. 



457. The only ways a trial Court may review^ the verdict or findings and 
judgment in an action for judicial error, are: 

137 



1. On proceedinjT^s for a new trial made as provided bv law, or (63 
Cal. 509.) 

2. On motion to enter a different judgment on verdict or findings. 

3. Apply only to actions and proceedings in Superior Court — not 
Justice or 'Police Court. 165 Cal. 372; 3 Cal. App. 158; 74 Cal. 
343; 88 Cal. 557; 127 Cal. 45; C.C.P. 657, 663. 



458. A new trial is a re-exaniination of an issue of fact in the same Court 
after a trial and decision by a jnry, Court, or Referee. 162 Cal. 406; 
29 Cyc. 720. Such new trial can be had only — 

1. When a trial has been had of issues fact raised by answer to a 
complaint, and 139 Pac. 1068; 167 Cal. 434; 149 Cal. 487; 8 Cal. 
App. 237; 154 Cal. 753; 141 Cal. 507; 120 Cal. 33; 111 Cal. 261. 

2. When granted by order trial Court on a])plication of party duly 
made. 

3. When granted by Appellate Court on appeal as hereafter ex- 
plained. C.C.P. 656. In Probate Proceedings 159 Cal. 23. 



459. A new trial could formerly be granted by trial court on its own motion, 
without application by party only after verdict by a jury, but this power 
has been repealed by amendment 1915. C.C.P. 662. 



460. A new trial may be granted by trial court on proper application of any 
party to action or proceedings upon any or all following grounds prop- 
erly shown ; 

1. Irregularity in proceedings, or order of Court pre\'enting a fair 
trial 2 Cal. App. 371; 130 Cal. 201; 149 Cal. 163: 152 Cal. 357; 
9 Cal. App. 500; 141 Cal. 251; 145 Cal. 148. 

2. Misconduct of jnry — including rendering verdicts determined by 
chance. Ill Cal. 616; 2 Cal. App. 145; 116 Cal. 162; 134 Cal. 494; 
125 Cal. 517. 

3. Accident or surprise, against which ordinarv prudence could not 
guard. 14 Cal. App. 59"; 8 Cal. App. 344 ; 9 Cal. App. 283. 

4. Newlv discovered material evidence — not discoverable or pro- 
ducible at trial. 166 Cal. 6; 166 Cal. 446; 164 Cal. 424; 167 Cal. 
126; 163 Cal. 84; 162 Cal. 214. 633; 159 Cal. 765; 10 Cal. App. 
802; 148 Cal. 162: 23 Cal. App. 148; 167 Cal. 133; 146 Cal. 317. 

5. Excessive damages given under passion or prejudice. 11 Cal. App. 
146; 118 Cal. 68; 125 Cal. 141. 

6. Insufficiency of evidence to justify verdict, or decision, or it is 
against law. 166 Cal. 501 ; 163 Cal. 146; 162 Cal. 406; 16 Cal. App. 
99; 11 Cal. App. 40; 153 Cal. 33\ 150 Cal. 238; 3 Cal. Apo. 662; 
145 Cal. 207. 

(a) Under this inadequac\- of damages may be urged. 132 Cal. 
357; 14 Enc. PI. and'Prac. 759; 29 Cyc. 847. ' 

7. Error in law occurring during trial and excepted to bv moving 
party. 139 Cal. 706. 

8. Never granted on stipulation of parties — some of these grounds 
must be shown to exist. 

9. Application must be made by the "party aggrieved." C.C.P. 657; 
20 Cal. App. 542. 

138 



461. Such application may be made ui)on all or any of such grounds, shown 
by the following papers, evidence or records : 

1. If on one or more of the first four grounds last stated, only on 
affidavits of facts showing and sustaining ground. 61 Cal. 605 ; 
125 Cal. 501 ; 130 Cal. 205"; 2 Cal. A])]). 145; 153 Cal. 652; 1.30 Cal. 
205. 

2. If on one or more of grounds numbered 5, 6, or 7 above, on the 
minutes of the Court in actions or proceedings, which include: 

(a) Entries in Clerk's minutes of proceedings, evidence, etc. 

(b) All pleadings and orders on file in action or proceedings. 

( c ) All depositions or documentary evidence used at the trial. 

(d) Reporter's notes or transcript thereof of oral testimony or 
proceedings. 

(e) Judge's recollection or notes of evidence or proceedings. 

(f) in brief, anvthing which would be proper to put into a bill 
of exception, etc. C.C.P. 658, 660; 90 Cal. 262; Sees. 445- 
450 ante. 



462. The application for new trial is made and presented in following man- 
ner: 

1. A written notice of intention to move for new trial is served on 
adverse partv and filed. 17 Cal. App. 554; 10 Cal. App. 762; 152 
Cal. 196; 115^ Cal. 16; 158 Cal. 258. 

(a) Within ten davs after notice of entry of judgment. 154 
Cal. 478; 116 Cal. 138; 135 Cal. 118; 116 Cal. 43; 100 Cal. 
576. 

(b) Or within ten days after verdict if trial by jury. 

(c) Time may not be extended by stipulation, or bv order of 
Court. 91 Cal. 488. 

(d) Notice may be waived by stipulation. 14 Cal. App. 333. 

2. The notice must be signed by moving party, or by his attorney, 
and must contain. 114 Cal. 588. 

(a) Title of Court and cause in which trial was had. 

(b) That moving party intends to move to vacate verdict or 
decision and for new trial. 167 Cal. 337. 

1. No time when motion will be made is stated. 

(c) Each ground, separately stated in language of Code, upon 
which motion will be made. 83 Cal. 450. 

(d) Papers to be used on motion — affidavits or minutes of 
Court. 

1. ^lay specify either, or both. 

2. Should state whether then on file, or to be thereafter 
served and filed. 

3. If motion to be made on affidavits, they must be prepared, served 
and filed : 

(a) \\'ithin ten davs after service of notice, which mav be 
extended twenty days. 141 Cal. 33 ; 129 Cal. 690. 

(b) Adverse party has ten days thereafter to serve and file 
counter affidavits — time may be extended 20 days. 

(c) Additional affidavits can be served and filed by either party 
only by leave of Court . 

4. \\'hen all papers have been thus prepared and filed — 

(a) Motion is then placed on law calendar, or set by court for 
hearing ex parte, must be heard within three months after 
verdict or notice of decision. 

139 



(b) Either partv gives notice to adverse partv of time set. C. 
C.P. 657-659, 660. 
Proceeding's may be dismissed for failure to prosecute. 20 Cal. 
App. 8 : 153 Cal. 673 ; 2 Cal. App. 267. 271 ; 121 Cal. 145. 



463. At time fixed, moving party makes orally formal motion for new trial 
on the grounds and papers specified in the notice. 41 Cal. 645 ; 3 Cal. 
App. 30": 

First : Moving party may submit, without argument ; otherwise may 

1. Present and point out particular errors relied upon. 

2. Cite and present his authorities to support his contention. 
Second : Adverse party may submit without argument, or may 

oppose hearing or granting motion. 

1. Point out any defect in the papers or proceedings. 

(a) Notice or papers not served, settled or filed in time or 
defective in form. 20 Cal. App. 643. 

(b) Moving party mav ask leave to amend some defects in 
form. 98 Cal. 315 ;^29 Cyc. 1033. 

(c) May ask to be relieved from failure to serve or file in 
time, except notice. 68 Cal. 485. 

2. Present facts or authority of law to sustain verdict, finding, 
or decision. 



464. The motion may be presented to and heard and determined by judge 
who tried issues or any new judge succeeding or properlv called in to 
preside. 103 Cal. 678; 133 Cal. 451. 
1. New judge has same powers and duties as trial judge. 121 Cal. 
349; 127 Cal. 355. 



465. The questions which such judge must or may not consider in deciding 
motion — 
First : Judge must consider and determine : 

1. All cjuestions properly presented in notice and papers upon 
which based. 

2. In considering sufficiency of evidence to justify verdict or de- 
cision. 

(a) Duty to determine preponderance of the evidence, though 
conflicting. 143 Pac. 248; 157 Cal. 348; 24 Cal. App. 251 ; 
20 Cal. App. 526, 536; 17 Cal. App. 725. 

(b) Effect or weight, and character of evidence to justify. 
10 Cal. App. 271 ; 150 Cal. 238 ; 148 Cal. 426. 

3. Should consider sufficiency of pleadings in reviewing rulings 
during trial — 

(a) On admitting or rejecting evidence. 

(b) On motions for non-suit. 

(c) On motions to settle issues. 

(d) On granting or denying leave to amend or file other 
pleadings. 

Second : Judge cannot consider or determine — 

1. Sufficiency of pleadings to support judgment. 16 Cal. App. 
448; 102 Cal. 587. 

140 



2. Correctness of rulings on demnrrer, motion to strike, or motion 
judgment on pleadings, 102 Cal. 5(S7. 

(a) Except to extent above stated. 

3. Snfificiencv of findings or verdict to justifv conclusions of law 
or judgment. 162 Cal. 406 ; 155 Cal. 121 ; 141 Cal. 165. 

4. \^aliditv of lav.- upon which ct)nclusions or judgment are based. 
136 Cal. 618. 

5. Nor amthing else affecting the correctness of judgment. 167 
Cal. 537': 156 Cal. 653 ; 19 Cal. App. 790. 



466. The order deciding motifni is made and entered, and lias the efifect, as 
follows : 
First: ( )rdcr is made and entered either — 

1. In writing signed by judge, and filed and entered in records 
b}' Clerk, or 

2. Orally announced bv Tndge and entered bv Clerk in minutes. 
4 Cal. App. 430. 

Second : The efifect of the order is : 

1. If denied, sustains the verdict, findings and judgment as en- 
tered. 

2. If granted, vacates and suspends verdict or findings and judg- 
ment. 148Cal. 397; 151 Cal. 680; 2 Cal. App. 351. 

(a) This efifect suspended by appeal from order. 

(b) But no lien and cannot be enforced, during pendency of 
appeal from order. 

3. A\ hen made and entered as above explained. 

(a) Court cannot review, vacate or set aside or change order. 
119 Cal. 351; 144 Cal. 524; 90 Cal. 15; 128 Cal.'83. 

(b) Except it may be amended to correctly express judge's 
action. 

4. ]\Iay be granted as to one or more issues, and denied as to 
others. 163 Cal. 449; 149 Cal. 151; 134 Cal. 641; 142 Cal. 322; 
78 Cal. 66; 131 Cal. 488; 101 Cal. 1. 

5. In granting court may impose terms, as reducing" judgment, 
payment costs, etc. 144 Cal. 521 ; 141 Cal. 63. 



Changing Judgment. 

467. Trial Court may set aside and vacate a judgment entered on findings 
made by the Court or special verdict of jury, and enter a dififerent 
judgment, — 

1. Only on an application of party aggrieved duly made as pre- 
scribed by law. 

2. , Cannot be done on Court's own motion. 

3. This proceeding entirely independent of proceeding for new trial. 

(a) May be made at same time. 

4. Does not apply to judgments. — 

(a) Entered on a general verdict, or 

(b) Entered without findings, or on findings of referee trying 
all issues, or 

(c) Void on their face, nor to amending judgments, or 

(d) Inconsistent with conclusions of law made in findings. 
C.C.P. 663. 

141 



468. Such action may be taken upon one of the folkjwins; causes materially 
affecting right of party and entitling him to different judgment. 

1. Conclusions of law not consistent with or suj^ported by findings 
of fact, or 

2. Judgment not consistent with or supported by a special verdict. 
C.C.P. 663; 167 Cal. 616; 157 Cal. 324.. 



469. Such action may lie ol)tained and had only Ijv fdlluwing i)roceedings : 

1. Such party must serve on adverse party and file notice of in- 
tention to make such motion. 

(a) Within ten days after notice of entry of judgment. 

(b) Time may be extended as in other cases. 

2. Notice must be in writing signed by party or his attorney, and 
must contain : 

(a) Title of Court and action in which judgment entered ; 
■ (b) Time and place when motion will be made — not more than 
60 days thereafter; 

(c) What motion will be made and by whom ; 

(d) State grounds and specify particulars in which judgment 
not supported ; 

(e) State what papers will be used on motion. 

3. At time specified present and argue as on any motion. 

4. Adverse party may oppose the hearing or granting motion, in 
same manner as explained on motion for new trial. Sec. 463 ante ; 
C.C.P. 663a. 



142 



LECTURE 36. 

Appeals from Superior Court — when and how taken. 

471. An appeal is a proceedin.^" l)y which an nrder or decision of trial court 
may be reviewed by a higher Court. 

1. P'arty taking is called appellant. 

2. Adverse party is called respondent. 

3. Otherwise title of parties remain same as in trial Court. C.C.P. 
936-938. 



472. Higher court can consider an appeal only when taken by the part>'. in 
the manner and within the time as prescribed by law. 

1. Appeal can be taken by a party to the action "aggrieved" by de- 
cision appealed from. C.C.P. 938; 162 Cal. 315; 22 Cal. App. 63; 
153 Cal. 53 ; 7 Cal. App. 244; 3 Cal. Apj). 158 ; 149 Cal. 569. 

2. Proper notice of appeal must be filed to give higher Court juris- 
diction. 162 Cal. 297 ; 156 Cal. 89 ; 22 Cal. App. 256. 

(a) Partv cannot be relieved or excused from default in giving 
in prescribed time. C.C.P. 940, 941b. 

(b) Time cannot be extended bv order or stipulation. 156 Cal. 
253. 

3. Prescribed papers or record necessary to enable court to review 
any decision. C.C.P. 950-953a, 954. 

4. Notice of appeal mav be waived bv voluntarv appearance within 
time to appeal— not after. 152 Cab 90; 149 Cal. 178; 153 Cal. 64; 
75 Cal. 597. 



473. In California, appeals from Superior Courts are taken to one of two 
higher courts. 

1. To Court of Appeal of District in wdiich trial court is located, in 
following civil cases : 

(a) Actions at law in which demand excluding interest, or value 
property is $300 and less than $2000. 148 Cal. 364; 4 Cal. 
App. 357. 

(b) Forcible and unlawful entry and detainer brought in Supe- 
rior Court. 

(c) Insolvency and actions to abate nuisance. 

(d) Special proceedings, mandamus, certiorari, prohibition, usur- 
pation office, contesting elections, eminent domain, and such 
others as provided bv law, except those given to Supreme 
Court. 

2. To Supreme Court in all other ci\il cases. 

3. Appeal to wrong Court not dismissed but simplv transferred to 
proper court. 22 Cal. App. 806; Con. Art. VI, Sec. 4; Sees. 49, 
50 ante. 



474. California Code provides two methods of appeal to either court — 

1. One usually referred to as "Regular method." 

2. The other called "Alternative method." C.C.P. 940, 941b, c. 

143 



475. Stich appeal may l)e taken l)y cither method from the following deci- 
sions and within the time following : 

First : From the following decisions : 

(a) Final judgment in an action or special proceeding commenced 
or brought into a Superior Court. 

(b) Order granting a new trial in an action or ])rocee(ling tried by 
a jury, where such trial by jury is a matter of right. 

(c) Order granting or refusing to grant an injunction or granting 
or refusing to grant the dissolution of an injunction. 

(d) Appointing a receiver (refusing to appoint reviewed on appeal 
from judgment). 

(e) Order dissolving or refusing to dissolve attachment, in five 
days to preserve. C.C.P. 946. 

(f) Order granting or refusing to change place of trial, 161 Cal. 
118. 

(g) Special order made after final judgment. 

(h) Interlocutory orders in partition and to redeem, 
(i) Interlocutory decrees of divorce, 
(j) Orders in probate. 
Second : In the following time : 

(a) From any judgment or order from which an appeal lies within 
60 days after made and entered, may be taken between time 
made and entered. 
(b) If proceedings for new trial pending time for appeal from 
judgment shall not expire until 30 days after entry in trial 
Court of order determining, or other termination of such pro- 
ceedings. C.C.P. 939, 941b, 963; 158 Cal. 119; 168 Cal. 433; 163 
Cal. 427; 17 Cal. App. 381. 
Third : Appeal may be taken from whole or part of order or judg- 
ments by either method. 168 Cal. 664; C.C.P. 941b; 165 Cal. 249, 
429: 164 Cal. 663 ; 163 Cal. 360; 158 Cal. 165, 699; 168 Cal. 398. Can 
appeal from judgment satisfied by execution. 165 Cal. 466. 
No appeal from judgment of contempt. 65 Cal. 28. 

476. Appeals by the regular method are perfected by the following proceed- 
ings : 

1. Notice of appeal in writing served on adverse party and filed with 
Clerk of trial Court. 162 "^Cal. 297; 155 Cal. 359; 153 Cal. 64; 152 
Cal. 31, 90, 196. 573 ; 99 Cal. 267. 

(a) Within time prescribed for taking appeal as above explained. 

(b) Time cannot be extended or waived by stipulation or order. 
C.C.P. 1054. 

2. This notice must be signed by appellant or his attorney and must 
contain : 

(a) Title of Court and cause in which action is pending. 

(b) Addressed to adverse partv and his attorney, if one. 162 
Cal. 250. 

(c) State appeal is taken from order or judgment entered — de- 
scribing it, and name of party appealing. 167 Cal. 539; 158 
Cal. 119; 15 Cal. App. 536. 

(d) Or, if from part thereof, state particularly what part. 163 
Cal. 360. 

(e) Name of Court to which appeal is taken. 

3. File appeal bond within same time and within five days after fil- 
ing notice. 165 Cal. 249; 168 Cal. 398. 

(a) But bond not now essential to validity of appeal. 162 Cal. 
755; 154 Cal. 731; 168 Cal. 398. 

144 



(b) Time for filin.c: niav Ije extended In- stipulation or order. 
C.C.P. 1054; 134 Cal. 546. 

(c) Bond itself mav be waived bv stii)ulati(jn (C.C.P. 948 j, but 
not after time 'expired. 152 'Cal. 90; C.C.P. 940, 941, 965, 
953. 



477. The record of proceedings upon which order or judgment appealed from 
is based and upon which record the appeal by regular method is heard, 
is prepared in trial court. 

1. Appeals from final judgments entered in cases tried in such court, 
heard on 

(a) Judgment Roll prepared by Clerk. C.C.P. 670, 950. 

(b) Any bill of exceptions or statement settled and filed as here- 
tofore explained. Sees. 445-450 ante. 

2. Appeals from order on motion for new trial heard on 

(a) Judgment Roll as above explained. C.C.P. 952, 661. 

(b) Bill Exceptions or Statement settled, filed and used on mo- 
tion. 

(c) Bill Exceptions afterwards settled showing affidavits or 
minutes of Court used at hearing. 

3. On all other orders or judgments, heard on Bill Exceptions set- 
tled and filed showing papers used and proceedings taken at hear- 
ing. C.C.P. 951. 



478. Appeals by the alternative method are perfected by the following pro- 
ceedings : 

1. Notice of appeal filed with Clerk of trial Court. 162 Cal. 297; 168 
Cal. 491. 

(a) Within 60 days after entry of judgment, or 30 days after 
the termination of or entry of order in trial court determin- 
ing proceedings for new trial. 168 Cal, 398. 

(b) Time cannot be extended or waived. C.C.P. 1054. 

2. Notice should be in form and contents same as notice by regular 
method. 

3. It is not served on adverse parties. 11 Cal. App. 460; 154 Cal. 
385. 

4. No appeal bond filed. 162 Cal. 755; 159 Cal. 366; 11 Cal. App. 
451; 154 Cal. 731, 385; C.C.P. 941b; 164 Cal. 693; 167 Cal. 250; 
22 Cal. App. 627. 

5. Appeal may be taken by attorney after death of client, before ad- 
ministrator is appointed. 158 Cal. 259. 



479. The record of proceedings upon wdiich the order or judgment appealed 
from is based and upon which record the appeal by alternative method 
is heard, is prepared in trial court, — 
1. Person appealing or intending to appeal serves notice on clerk of 
court stating (14 Cal. App. 88; 154 Cal. 385.) 

(a) He has appealed or intends to appeal from Order or Judg- 
ment, describing it 

(b) Requesting a transcript to. be made up and prepared show- 

1. Testimony or evidence ofifered and received at trial. 

2. All rulings, instructions, acts or statement of Court. 

145 



3. All objections and cxce])tions of parties and matters 
U) which same relates, 
(c) If appeal is from order or judgment not in indi^incnt roll, 
notice also specify 

1. Such pleadings, pai)ers, records and files he desires in- 
corporated. 166 Cal. 279; 22 Cal. Apj). 256. 

2. The notice is served on Clerk within ten days after notice of entry 
of order or judgment, or after notice of decision denying new 
trial or termination of proceeding's on motion for new trial. 21 
Cal. App. 498; 168 Cal. 334; 

3. Also with notice file with Clerk a bond to i)ay cost of transcript 
in amount fixed by Clerk. 168 Cal. 364. 

4. Upon such notice court makes an order directing- c(jurt repf)rter 
to transcribe his report of the trial. 

5. Within 20 davs after notice, reporter transcribes his n^tes and 
files with clerk. 160 Cal. 331 ; 20 Cal. App. 280. 

6. Clerk then gives notice to attorneys of parties stating, 

(a) Reporter's transcript has been so filed, and 

(b) That it would be presented to judge for his approval with- 
in 5 days after such notice. 164 Cal. 768. 

7. At time fixed judge settles and certifies transcript. 158 Cal. 39. 

(a) Either party may have other matters inserted at settlement, 
or 

(b) May by stipulation omit any matters desired. 

8. This transcrii:)t takes place of bill of exceptions or statement un- 
der regular method, but contains no specifications. C.C.P. 953a; 
166 Cal. 17. 282; 165 Cal. 37H: 156 Cal. 135: 22 Cal. App. 627; 20 
Cal. App. 280; 168 Cal. 364. 

480. Such appeals by either method must be perfected from each appeal- 
able order or judgment by separate notices and proceedings, except: 

1. Appeals from a final judgment and from order denying motion 
for new trial may be taken and perfected in same notice and pro- 
ceedings. 159 Cal. 193. 

2. If they are taken within prescribed time for each. 

3. Otherwise, bv separate notices and proceedings, but same record. 
165 Cal. 249; 157 Cal. 528. 

481. Respondent may raise objections in Appellate Court to the appeal or 
to hearing thereof on the record so prepared. 

1. By motion upon notice to appellant to dismiss appeal on ground 

(a) Notice not served or filed in time. 155 Cal. 359. 

(b) Notice insufficient in form or contents. 165 Cal. 249. 

(c) If regular method no bond filed. 11 Cal. App. 383. 

2. By objection in brief, oral argument or by motion to disregard 
any part of record when 

(a) Papers not presented by proper bill. Statement or Tran- 
script. 

(b) Bill, Statement or Transcript not properlv prepared or cer- 
tified. 149 Cal. 173. 

(c) Bill, Statement, or Transcript not settled in proper time. 

1. If defect appears on its face or the record. 150 Cal. 
425. 

3. By suggestion of diminution of record when 

(a) Some material matter or paper has been omitted. 24 Cal. 
App. 213, 778; 20 Cal. App. 280. 

146 



482. An appeal ])rc)perly i)crfecte(l has this effect: 

1. It transfers the order or ju(ls:,mient appealed from to Appellate 
Court. 

2. Invests such Court with jurisdiction to review the same. 

3. Divests trial Court of all power to act affecting order or judg- 
ment appealed from. 167 Cal. 342; 23 Cal. App. 627; 152 Cal. 697. 

4. Preserves status existing at time order or judgment made. 148 
Cal. 13. 

5. Stays execution or proceedings to enforce, except when stay- 
bond is required. 

(a) When bond required, execution stayed only on giving bond. 

(b) Attachment preserved only when appeal is perfected w'ithin 
5 days after entrv order appealed from and bond given as 
required. 3 Cal.'App. 208; C.C.P. 946. 949; 166 Cal. 325; 
167 Cal. 250. 



147 



LECTURE 37. 
Appeals from Superior Court — How presented to Appellate Court. What 

questions considered. 

485. After an appeal is perfected and record prepared in trial Court, the 
record nnist be transmitted to Appellate Court, and filed with Clerk 
thereof. 

1. The proceedings differ in each method of Appeal. 

2. Document containing is called "Transcript on Appeal." 



486. By regular method, the transcript on appeal is prepared, served and 
filed as follows : 

1. Must be printed in form and manner prescribed by Supreme 
Court Rules. 

2. After printed and certified must be served. 

(a) On all adverse parties or their attorneys. 

(b) On Clerk of trial Court for Judge who tried case or issue. 

(c) Evidence of service is endorsed on original by signed ac- 
ceptance or affidavit of server. 

3. After service, original and 20 copies filed in Appellate Courts, 

(a) If appeal is to Supreme Court, all transcripts filed with its 
Clerk. 

(b) If appeal is to District Court, original and 3 copies filed 
with its Clerk, and 17 copies with Clerk Supreme Court. 

4. The preparation, serving and filing are done by the appellant or 
his attorney. 



487. Such printed transcripts on appeal must be served and filed within forty 
days after an appeal is perfected, except as follows : 

1. When bill of exception or statement is settled and filed before 
appeal taken, time begins 

(a) On date of filing notice of appeal and bond, when filed to- 
gether. 

(b) On date bond is filed, when filed after notice of appeal. 

(c) On date notice of appeal is filed, wdien no bond is filed. 

2. When bill of exception or statement is settled and filed after ap- 
peal taken, time begins. 

(a) On date bill or statement is filed after settlement. 151 Cal. 
216. 

3. When appeal is taken from final judgment, while proceedings 
for new trial is pending. 

(a) Time to file transcripts begins to run on date proceedings 
for new trial is decided or dismissed. 152 Cal. 261 ; 148 Cal. 
404. 

(b) Except, when bill exce])tion is thereafter settled, then om 
date the settled bill is filed. 

4. Time for filing may be extended by order of Chief Justice Supretue 
Court. 

(a) On Stipulation or affidavit showing cause before time ex- 
pires. Sup. Ct. Rule II. 24 Cal. App. 778. 



488. The printed transcript on appeal must contain the papers and be certi- 
fied as follows : 

148 



First: On appeal from final jud.e^ment. 

1. Copies of all papers constituting^: judgment roll — C.C.P. 670, 
950. 

2. Copy of any bill exception or statement settled and filed, and 
relied upon in appeal. 

3. Copy notice of appeal. 162 Cal. 47. 

Second : On ap])eal from order granting or denying motion for new 
trial, 

1. Copy notice of appeal. C.C.P. 952, 661, 670. 

2. Copy order appealed from. 

3. Copies of all papers constituting judgment roll. 

4. Copies of affidavits, or bill exception or statement used at 
hearing motion. Opinion of Trial judge no part of record. 164 
Cal. 196. 

(a) The affidavits must be authenticated by bill exception 
duly settled and filed. 
Third : On appeal from all other orders or Judgments. 

1. Copy notice of appeal. 

2. Copy order or judgment appealed from. 

3. Copies all papers used on hearing in trial Court authenticated 
by bill of exceptions settled and fikd. 162 Cal. 110. Rule XXIX 
Supreme Court. 

Fourth : The printed transcript must be certified to be correct, either 

1. By Clerk of trial Court under his hand and seal of Court, or 

2. By stipulation of parties or their attorneys in writing attached 
thereto. 

3. Certificate must state appeal bond was filed or waived. C.C.P. 
953. 



489. By alternative method, the transcript on appeal is prepared and filed 
as follows : 

1. It is prepared and transmitted by Clerk of trial Court to Ap- 
pellate Court. 

2. It must be typewritten in form according to rules Supreme 
Court — original papers not sent up — 164 Cal. 768; 11 Cal. App. 
632; (Rule VII, No. 6.) 

3. Original copy is filed with Clerk o.f Appellate Court to which 
appeal is taken, or printed copy. 162 Cal. 318. 

4. No copy is served on adverse party or trial judge. 

5. Record on appeals from final judgment and order denying 
new trial may be in same transcript. C.C.P. 953c. Does not ap- 
ply to appeals on Judgment Roll alone. 168 Cal. 364. 



490. By such method, the transcript must be filed in Appellate Court within 
ten days after the record is prepared by Clerk Trial Court as heretofore 
explained : Sec. 479 ante. 

1. No time prescribed within which Clerk is to prepare transcript. 

2. Necessarily, he cannot prepare it until after, 

(a) Notice of appeal is filed — for it is part of record on appeal. 

(b) Reporter's transcript is settled and certified — for same 
reason. 

(c) Order denying new trial is entered on appeals from it 
and the judgment. 

3. Time for filing mav be extended as in case of printed tran- 
scripts. C.C.P. 953c. 

149 



491. By such method, the transcript on appeal must contain the papers and 
be certified as follows: 

1. Clerk's Transcript — which must contain, 

(a) Copies papers constituting judgment roll on appeals from 
final judgment and order granting or denying new trial. 

(b) This Transcript is certified under hand of Clerk trial 
Court and under its seal. 

(c) Copy notice of appeal filed. 162 Cal. 47. 

2. Reporter's Transcript — which must contain, 

(a) Matters heretofore exi)lained on ai)peal from judgment 
and orders on new trial. Sec. 479 ante. 

(b) All pleadings and papers used at hearing, in addition to 
other matters, on appeals from other orders. 161 Cal. 118. 

(c) It is settled and certified by Judge Trial Court as hereto- 
fore explained. 158 Cal. 39; 21 Cal. App. 338, 365; 18 Cal. 
App. 467; C.C.P. 953, a, b, c; 165 Cal. 37»: 166 Cal. 279; 
163 Cal. 20. 



492. After transcript is filed by either method, parties must serve and file 
briefs : 
First: All briefs must be printed according to rules Supreme Court. 

1. Copies served on adverse parties or their attorneys, and on 
trial Clerk for trial Judge. 

2. Same number filed in Court as explained for printed transcripts. 
Sec. 486 ante. 

Second : Opening brief by appellant served and filed within 30 days 
after filing transcript, and containing, 17 Cal. App. 230. 

1. Title of Cause and Appellate Court. 

2. Statement nature of case and order or judgment appealed from. 

3. Statement of facts and proceedings upon which order or judg- 
ment was based. 

(a) Reference to folio printed transcript showing same. 

(b) In alternative method, copy in brief parts of evidence, 

pleadings or record relied on. C.C.P. 953c; 156 Cal. 335; 
20 Cal. App. 161 ; 164 Cal. 693 ; 23 Cal. App. 373 ; 16 Cal. 
App. 235 ; 8 Cal. App. 7. 

4. Questions involved in the appeal and to be decided by Appellate 
Court. 153 Cal. 578; 8 Cal. App. 702; 3 Cal. App. 155. 

5. Points, authorities and argument relied upon in support of ap- 
pellant's contention. 148 Cal. 180; 149 Cal. 163 ; 6 Cal. App. 440. 

6. The relief or judgment desired from Appellate Court. 

Third : Respondent's reply served and filed within 30 days after ser- 
vice appellant's brief, containing: 

1. Any corrections of statements made in appellant's opening brief. 

2. Any replies to points, authorities and arguments presented by 
appellant. 

3. Any new points and authorities supporting respondent's con- 
tention. 

4. Relief respondent desires from Appellate Court. 

Fourth : Appellant's closing brief within 10 days after service re- 
spondent's brief. 
1. Containing any reply desired to respondent's contentions. 

Fifth : Time for filing briefs may be extended as in case of transcripts. 

Sixth : Additional briefs may be filed only by leave of Appellate 
Court. 12 Cal. App. 378: 4 Stand. Proc. 575: 2 Cyc. 1013; 3 Enc. 
PI. and Pr. 710. 

150 



493. Objections ma_\' be made to record on apj^eal as follows: 

1. Motion to dismiss appeal by respondent on notice to appellant, 
when 

(a) 'i'ranscript or ai)pellant's opening" brief not served or filed 
in time. 17 Cal. App. 230; 16 Cab' App. 41 ; 15 Cal. App. 189; 

14 Cal. App. 88; 11 Cal. App. 94. 270; 147 Cal. 424. 

(b) Filing- transcript or brief l^efore hearin,i( motion sntficient 
answer to it. 

(c) Record not properly certified. 16 Cal. App. 515. 

2. Objection by respondent to considering any part of record, 

(a) When not certified, printed or prepared as required. 

(b) When not presented by proper bill, statement or transcript. 

(c) When bill, statement, or transcript not settled or filed in 
time. 

3. Motion to submit by api)ellant on notice to respondent, when 

(a) Respondent's brief not filed in time. Sec. 481 ante. 



494. In Appellate Courts, cases are placed on the calendar for oral argu- 
ment usually in order transcripts are filed, and heard at terms fixed by 
law or rules of Court. 

1. In District Court, usually every three months. 

2. In Supreme Court, twice annually at Sacramento, San Francisco 
and Los Angeles. 168 Cal. 617. 

3. Attorneys for parties may then submit cause without argument, or 

4. Attorneys may orally argue appeal in order briefs may be filed. 

(a) Such number and for such time as Court may permit. 



495. Every presumption is in favor of regularity trial Court's action and 
burden is on appellant or party attacking, to show substantial error re- 
sulting to his injury. Hence, 18 Cal. App. 139. 

1. He must show such error by the record and in his brief or oral 
argument. 

2. Any c[uestion not so pointed out and shown is deemed waived. 

3. Court will not itself search record for errors. 156 Cal. 691 ; 155 Cal. 
359, 371 ; 23 Cal. App. 134, 232, 373; 17 Cal. App. 556; 151 Cal. 544, 
153 Cal. 757. 



496. The questions which Appellate Court will consider upon a proper re- 
cord on appeal from orders and judgments may be summarized as 
follows : 
First: On appeal from final judgments by either method. 

1. On Judgment Roll alone, will consider only questions attecting 
judgment, 

(a) Whether it is valid or sustained by law or within juris^ 
diction of Court over cause. 

(b) Whether supported by the verdict or findings. 

(c) Whether consistent with or supported by pleadings. 

(d) Rulings on demurrers to, and motions to strike out, plead- 
ings. 152 Cal. 344. 

(e) Sufficiencv of pleadings to support judgment. C.C.P. 956; 
165 Cal. 557; 164 Cal. 274, 623; 160 Cal. 611, 692; 150 Cal. 
398. 

2. On Judgment Roll and bill exceptions or transcript settled — 
will consider 

151 



(a) All (jiiestions above mentioned. 164 Cal. 165, 242. 

(b) Also all exceptions shown by bill or transcript. 168 Cal. 
632. 

(c) Except on regular method, will not consider sufficiency 
of evidence to support verdict or decision if appeal is 
taken more than sixty days after entry. 

Second : On appeal from order granting or denying motion for new 
trial. 

1. All exceptions i)roperly presented in l)ill exceptions, or state- 
ment, except 

2. Will not consider questions arising on judgment roll above 
mentioned. 167 Cal. ZZ7 ■ 162 Cal. 406; 160 Cal. 733, 156 CaL 
653, 685; 155 Cal. 280; 153 Cal. 307; 18 Cal. App. Z77 ; 20 Cal. 
App. 540. 

Third: On appeal from all other orders or judgments — 
1. All exceptions properly presented in bill of exceptions affecting 
order. 

Fourth : Appellate Court not bound by reasons given by trial Court 
for its action. 165 Cal. 48, 365 ; 167 Cal. 126; 161 Cal. 649; 157 Cal. 
348. 

1. Appellate Court may affirm or reverse for any other reason ap- 
pearing. 148 Cal. 426; 154 Cal. 456; 153 Cal. 411. 

2. Trial Court's opinions no part of record on appeal. 157 Cal. 348; 
166 Cal. 17, 140; 162 Cal. 506. 

497. Appellate Court will not review following matters or rulings: 

1. The weight or preponderance of evidence when conflicting. 

2. Will not disturb a verdict or finding based on conflicting evidence. 

(a) The conflict must be real and in material evidence. 166 Cal. 
467; 160 Cal. 237. 

3. Will not modify verdicts or findings or make findings of fact. 162 
Cal. 324; 168 Cal. 632. 

4. Will not disturb rulings within discretion of trial Court, unless 

(a) An abuse of discretion is shown, resulting in injury to party. 
165 Cal. 221, 372, 786; 167 Cal. 719; 163 Cal. 290, 449; 162 
Cal. 413, 506; 22 Cal. App. 691; Rule as to conflict of evi- 
dence applies to orders made on documentary evidence. 156 
Cal. 267; 24 Cal. App. 420; 15 Cal. App. 341. 

5. Will not decide moot questions — 23 Cal. App. 630; 153 Cal. 285, 
204. 

498. Appellate Court on the appeal may take following action: 

1. Vacate and annul order or judgment appealed from. 

2. Order action dismissed, or 

3. Direct a new order or judgment to be entered. 

4. Modify the order or judgment in whole or part — order part re- 
mitted. 166 Cal. 277. 

5. Grant a new trial as to all or any part of issues involved. 166 Cal. 
130; 155 Cal. 519; 23 Cal. App. 423. 

6. Impose damages against appellants wdien appeal is taken for delay. 
158 Cal. 435. 

7. Order restitution of property or rights lost by erroneous order or 
judgment. C.C. 957; 155 Cal. 287. 

(a) Consistent with rights of purchaser at sale under judgment. 

8. Its orders to trial Court is called a "remittitur," a 

(a) Writ issued by Clerk of Court containing orders and judg- 
ments of Appellate Court made on the appeal. 

152 



9. Orders and judgments of trial Court affirmed on appeal become 
final, C.C.P. 49, 53, 957, 958, 1049; 163 Cal. 360. 

10. Decision on any question is res adjudicata. 163 Cal. 445 ; 161 Cal. 
120. 

11. Decision on appeal, reversing case, becomes "Law of Case" — 162 
Cal. 735. 



499. Rehearings may be granted in either Appellate Courts, and appeals may 
be transferred from one Court to another, as follows : 

1. Rehearing may be granted within 30 days after judgment pro- 
nounced therein. 

(a) Upon printed petition of party served within 20 days after 
judgment pronounced. 

(b) Adverse party may file printed answer thereto 2 days be- 
fore expiration of 30 days. 

(c) If granted, judgment set aside and appeal reheard. 

(d) If denied, judgment becomes final. 

2. Supreme Court may order hearing therein of appeal after judg- 
ment in District Court. (Does not applv to Habeas Corpus 164 
Cal. 724.) 

(a) AA'ithin thirty days after judgment District Court becomes 
final. 

(b) Upon printed application of party served and filed within 
10 days thereafter. 

(c) Adverse party may serve and file printed answer 10 days 
before 30 days expire. 

(d) If granted. District Court judgment vacated and appeal 
heard in Supreme Court. 

(e) If denied, remittitur issues on judgment out of District 
Court. 

3. When Judges of District Court fail to agree upon a judgment 
on appeal, 

(a) Supreme Court may order appeal transferred to it or to an- 
other District Court. 

(b) On its own motion, or at suggestion of either party in Court 
or Chambers. 

4. Before submission and judgments therein, appeals may be trans- 
ferred from one Court to another. 

(a) From a department to bank in Supreme Court. 

(b) From a District Court to Supreme Court or to another Dis- 
trict Court. 

(c) From Supreme Court to a District Court. 

(d) By order of Supreme Court on its own motion, or 

(e) On application of party showing 

1. Questions involved in the cause and 

2. Reasons why it should be transferred. 

5. A District Court may transfer appeal to Supreme Court or an- 
other District Court. 

fa) When appeal has been taken to wrong Court. Con. Art. VI. 
Sup. Ct. Rules XXX— XXXIII. 



500. On appeal by regular method, the record on appeal may be prepared 
and transmitted to Appellate Court in same manner as on appeal by 
alternative method— 166' Cal. 17; 161 Cal. 295. 

153 



LECTURE 38. 

Appeals to Superior Court — From Justice or Police Court. 

503. An api^cal may be taken to the Superior only from a judgment rendered 
in Justice or I'olice Court in same County, by any parly dissatisfied 
with such judgment. 

1. Within 30 days after rendition of judgment. 161 Cal. 329. 

2. Appeal may be from whole judgment or part thereof. 

3. Appeal may be on (piestions of law alone, in all cases, or 

4. Appeal may be on (piestions of fact or law and fact, when a trial 
was had on issues of fact. 4 Cal. Ap]x 207 ; C.C.P. 974 : 119 Cal. 437. 



504. Such appeal is perfected by the following proceedings : 

1. Notice of appeal in writing" served on adverse party and filed by 
Justice or his Clerk, only upon payment of Justice fee and the 
Superior Court filing fee and calendar fee containing — 20 Cal. App. 
638; C.C.P. 981. 

(a) Title of cause and trial Court. 

(b) Addressed to adverse party, his attorney and the trial Court. 

(c) Statement that party appeals from judgment giving date 
rendered. 

1. If from part, state particularly what part. 

(d) State whether appeal is taken on questions of law or fact, 
or both. 163 Cal. 701. 

(e) Dated and signed by party or his attorney. C.C.P. 974. 

2. Undertaking with two sureties in sum of $100 filed with Justice 
within five davs after filing notice appeal. 162 Cal. 334; 159 Cal. 
710; 19 Cal. App. 457. 

(a) Exception may he taken to sureties who must qualify or 
new sureties given. 23 Cal. App. 750; 17 Cal. App. 93. 

(b) Notice of filing undertaking must be given adverse party, 
no time fixed. (159 Cal. 483.) But this notice is not juris- 
dictional. 162 Cal. 334; 17 Cal. App. 51. 93 ; 13 Cal. App. 193. 

3. Appellant may deposit with Justice $100 in money instead of un- 
dertaking. 148 Cal. 741 ; 12 Cal. App. 327 ; 151 Cal. 589 ; 8,Cal. App. 
962. 

4. Undertaking or deposit must be filed or made within the 5 days 
but may be after 30 days after rendition of judgment. 162 Cal. 
334; C.C.P. 974. 978, 978a; 159 Cal. 474; 23 Cal. App. 670; 14 Cal. 
App. 572 ; 12 Cal. App. S36 ; C. C. P. 981. 



505. If the appeal is taken on questions of law alone, such appeal is heard 
only on a record prepared as follows : 

1. Appellant prepares a written statement and files it with Justice, 
containing 

(a) Title of cause and trial Court. 

(b) Proceedings showing grounds relied upon in the appeal. 

(c) So much evidence necessary to explain the grounds, and no 
more. 

(d) Signed by party or his attorney. 

2. Statement must be filed within 10 days after rendition of judg- 
ment. 

3. Give notice to respondent that statement has been filed. 

4. Respondent may file amendments within 10 days after notice. 

5. lustice then settles statement and signs his certificate to that ef- 
fect. C.C.P. 975. 

■1:54 



506. Upon appeal being so perfected on questions of law alone, and pay- 
ment of appeal costs, the Justice sends U) Clerk of Superior Court fol- 
lowing papers in case. 

1. Statement adopted or settled by Justice. 

2. Copy of docket of Justice showing proceedings in case certified 
by him. 

3. All motions filed during the trial. 

4. Notice of appeal, and undertaking filed. 

(a) Deposit in lieu of appeal bond does not have to be sent. 
C.C.P. 977; 147 Cal. 172. 

5. Filino- fee and calendar fee. C.C.P. 981. 



507. Superior Court determines such appeal on the papers last above men- 
tioned and may take the following action : 

1. Review all orders afi^ecting the judgment appealed from. 

2. May set aside, or confirm or modify any proceedings subsequent 
to judgment. 

(a) Cannot review orders afifecting provisional remedies. (11 
Cal. App. 30.) 

3. May reverse judgment and order a new trial when necessary. 

(a) New trial, if ordered, had in Justice Court — not in Superior 
Court. 124 Cal. 468 ; C.C.P. 980 ; 2 Cal. App. 529. 



508. Such appeal is set for hearing, presented and heard in same manner 
as similar questions of law are presented in actions commenced therein. 

1. Presented and considered on the record. 

2. Appellant should point errors relied upon. 

3. Argued orally or on briefs, as Court may grant. 



509. Upon appeal so perfected on ciuestions of fact or law and fact, and pay- 
ment of appeal costs. Justice sends to Clerk of Superior Court follow- 
ing papers in case : 

1. Copy of his docket showing all proceedings certified by him. 

2. All papers and pleadings filed in cause — originals, not copies. 

3. Notice of appeal and undertaking on appeal or deposit. C.C.P. 977. 

4. Fee covering filing and calendar fees. C.C.P. 981. 



510. Upon such appeal being perfected, and such record is filed in Superior 
Court the following proceedings may be had therein : 

1. The action is tried anew in Superior Court. 

2. Such trial is set and is conducted same as in actions commenced 
therein. 

3. Either party may take same proceedings therein. 

(a) May file amended or supplemental pleadings on leave of 
Court. 

(b) May move for change of venue (except on ground of resi- 
dence) or continuances, or for judgment on pleadings. 71 
Cal. 382, 555. 

(c) New demurrer or motion to strike out are not filed — but 
may present those filed in lower court. 

(d) May resort to provisional remedies, or move to dissolve 
those granted in lower Court. 

155 



(e) May demand a jury (ir ask for reference. 

4. After trial, decision and judgment made and entered, and enforced 
as in other cases therein. 

5. Motion for new trial therein alter judj^ment may be made. C.C.P. 
980, 976. 

6. But cannot review rulint;s of justice Court on attachment or other 
provisional remedy. 11 Cal. App. 27. 



511. The effect of an appeal properly perfected to Superior Court upon the 
judgment and its enforcement, seems to be as follows: 

1. On ap])cal upon questions of law alone. 

(a) Judgment remains unaffected until modified or reversed. 

(b) May pending appeal be enforced unless stayed by filing 
bond or making deposit. 

(c) Dismissing appeal or afifirming judgment restores right to 
enforce when stayed. 

2. On appeal upon questions of fact, or both law and fact. 

(a) Vacates judgment and divests justice of power to take 
any action thereafter. (114 Cal. 374.) 

(b) Hence, no execution could be issued, until appeal is de- 
termined. 

(c) However, Code seems to contemplate a stay onlv by bond 
or deposit. C.C.P. 978, 979. 

(d) Dismissal of appeal restores judgment. 

(e) Judgment Superior Court, after retrial takes the place of 
judgment of lower Court. C.C.P. 980. 



512. The duties of each party in prosecution of such appeal and the conse- 
quence of failure are as follows : 

1. Duty of appellant in all cases to 

(a) Perfect the appeal within time and in manner prescribed. 

(b) Pay Justice costs of appeal — not of trial. 

(c) Enforce transmission of papers and records as provided 
by law, or rules of Court. 

(d) Have papers filed in Superior Court and pay fees thereof. 

(e) In appeals on questions of law alone, bring same for hear- 
ing in Superior Court. 

2. Upon failure to perform either of such duties and for defects 
in appeal. 18 Cal. App. 464. 

(a) Respondent may make motion to dismiss appeal in Superior 

Court. 
(h) On notice to appellant stating grounds thereof. 
(c) And affidavit showing facts not appearing by the record. 

3. In appeals on questions of fact or law and fact, it is duty of 
plaintiff 

(a) To prosecute case to trial in Superior Court after papers 
filed therein. 15 Cal. App. 651 ; 10 Cal. App. 734. 

(b) Superior Court may dismiss action for failure to prosecute 
an unreasonable time. 

1. On motion of defendant after notice to plaintiff. 

2. Affidavit showing delay without cause, as in other 
cases. 

3. Effect would be to terminate action and judgment. 
C.C.P. 980. 

156 



513. There is no appeal to Appellate or Supreme Courts from the orders 
and judgment by Superior Court on appeals from Justice or Police 
Courts — except in actions involving 

1. Title or possession of real property. 

2. Legality of any tax, impost, assessment, toll or municipal fine. 

3. A demand exclusive of interest or value of property of $300 or 
over. 

4. Of such cases Superior Court takes original jurisdiction, whether 
taken there by appeal or transfer, except on objection to juris- 
diction. 19 Cal. App. 79, 93; C.C.P. 964, 838; Con. Art. VI; 163 
Cal. 240; 132 Cal. 700; 101 Cal. 160. 



514. The orders and judgments of Justices, and of Superior Court, may be 
reviewed to a certain extent by the Higher Courts. 

1. By ^Mandamus — to compel performance of duties. C.C.P. 1085, 
Sec. 604 post. 

2. By Certiorari — To review order or judgments made without 
jurisdiction, but not errors committed within jurisdiction. C.C.P. 
1068, Sec. 881 post. 

3. Bv Prohibition — to prevent performance of acts without juris- 
diction. 162 Cal. 334; 159 Cal. 474; 23 Cal. App. 670; C.C.P. 1102, 
Sec. 893 post. 



157 



LECTURE 39. 

Selection of Remedies or Theories. Classification of Remedies — Rules for 

Selection. 

517. By "Selection of Kcniedics or Theories" is liere meant the choice of 
that remedy or theory allowed by law which a ])arty may pursue or 
prosecute to obtain appropriate relief. 

1. Between actions and special proceedings. 162 Cal. 34. 

2. Between the dififerent kinds of actions — 

(a) Let;al or ecpiitable, ex contractu (on obligations), or ex 
delicto (on torts), 

(b) Various theories of each, arising from facts or law. 

3. Between the different Special Proceedings proxided by statute 
to furnish dift'erent relief. 

4. Not including general rules of procedure and incidental reme- 
dies therein, heretofore explained. 15 Cyc. 252-257; 7 Enc. PI. 
and Prac. 361; 20 Enc. PI. and Prac. 270; 5 Stand. Proc. 78. 



518. This selection, to be most available, must or should be made when the 
party's right to pursue a remedy arises, as heretofore explained. Sec. 
18 ante. 

1. After the actual or threatened violation of right or breach of 
duty, and Sec. 415 ante. 

2. Before right to pursue any remedy is barred or lost. Sec. 30-40 

ante. 

3. The effect of an "Election of Remedies or theories" has here- 
tofore been explained 

(a) \Mien another may be pursued after one has been se- 
lected. 

(b) \\'hen several may be pursued at the same time. Sec. 20 
ante. 

(c) When selection of one bars subsequent choice of another. 
Sec. 21 ante; 121 Cal. 115; 15 Cvc. 259-261, 264; 7 Enc. 
PI. and Prac. 362; 1 C.J. 1014. 



519. This selection should be determined by considering the facts of each 
case and rules of law applicable thereto, bearing upon and showing the 
following elements involved: 
First ; Those concerning which the general rules have heretofore 
been explained. 

1. The nature of right vested in one party, and corresponding 
duty on the other, and how established. 

2. The nature of the violation of the right or breach of duty, and 
how committed. 

3. The extent and character of injury or damage suff"ered thereby. 

4. The appropriate relief allowed by law as most adequate com- 
pensation or protection. Sees. 18-21 ante. 

Second: The final element which will be hereafter in general way 
explained. Sees. 535-904 post. 

1. The characteristics of the various theories and remedies pro- 
vided by Codes, showing 

(a) The rights and injuries to which they apply. 

(b) The general relief which they afford, and 

158 



(c) Incidental remedies which niav l)e used in aid thereof. 
161 Cal. 42; 7 Enc. PI. and P'rac. 367-373; 1 C.J. 1015- 
1018. 



520. All actions under the Code arise out of either an oblij^ation or an in- 
jury; hence are divided, as to their origin, into two general classes: 

1. Ex contractu, on contract — for the enforcement or breach of con- 
tractual obligations. 

2. Ex delicto, on tort — for enforcement or breach of duties imposed 
bv law. Sec. 11 ante; C.C.P. 25, 26, 27; 139 Cal. 398; 15 Cyc. 
254; Pom. Rem. 48, 452; Notes 50 L.N.S. 3; 129 Cal. 6; 1 C.J. 
1013-1040. 



521. An action is ex contractu when the right is created and duty imposed 
only by contract made by the parties or implied by operation of law, 
and is brought either 

1. To enforce performance of its terms and duties, or 

2. To recover relief for a breach in the performance of such con- 
tract, either 

(a) An entire omission to perform, or 

(b) An improper or negligent performance. 139 Cal. 398; 129 
Cal. 68; A.P.R.R. Co. v. Laird. 164 U. S. 393 (41 L. Ed. 
485) ; Pom. Rem. 453; 1 C.J. 1019; Sec. 855 post. 



522. An action is ex delicto, or tort, when the right exists and duty imposed 
by some rule of law and a contract express or implied, or by law alone, 
and action is brought, — 

1. To enforce performance of such duty imposed by law, or 

2. To recover relief for a breach in performance of such legal duty, 
either 

(a) An entire omission to perform, or 

(b) An improper or negligent performance, or, 

(c) Doing an act the law forbids. 63 Cal. 97; 123 Cal. 316; 
Pom.^Rem. 454; 1 C.J. 1019. 



523. When the right exists and duty is imposed both l)y contract, express 
or implied, and by rule of law, party injured may pursue either action 
ex contractu, or ex delicto; — (Sees. 854, 863 post). 

1. He may waive tort, and sue on contract, and by it (Sec. 543 post) 

(a) Obtain relief such action legally secures. 

(b) Pursue all auxiliary remedies given such actions, or 

2. He may sue in tort alone, obtaining all relief it legally secures. 

3. But cannot pursue both — must elect one or other. (Sec. 21 ante.) 

4. His election is shown by allegations and prayer of complaint. 

5. ^^ hen pleading is uncertain as to whether action is ex contractu 
or ex delicto 

(a) Pleader may be compelled to make definite and certain, or 

(b) Court will presume the one less injurious or burdensome to 
defendant therein. 

6. The citations give examples of actions herein referred to. 166 Cal. 
36; Pom. Rem. 452-455 note ; 4.38-464 notes; 50 L.X.S. 3 notes; 111 
Cal. 668; 5 Stand. Proc. 103; 1 C.J. 1031. 

159 



524. The duties imposed by law on ])crsons vary with their relation, and too 
numerous to specify, hut iiiay he summarized in general terms as fol- 
lows : 

1. To perform all ohligations arising from contract or by law from 
his relation to another. Sec. 854 post. 

(a) Unless relieved therefrom by such contract or by law. 

2. To so use his own rights as not to infringe upon rights of an- 
other. 

3. To refrain from injuring the person or pro])erty, or from infring- 
ing upon rights of another. 158 Cal. 551. 

4. In case of breach or violation, to make relief to the other for any 
injury inflicted thereby, 

(a) By paying the damages occasioned the ])erson, property, or 
rights of the other, — • 

1. By his willful deceit, fraud, or other wrongful acts. 
164 Cal. 343 ; 10 Cal. App. 708. 

2. By want of his ordinary care or skill in management 
of his property or person. 

3. Except so far as such injury results from willful or 
negligent acts of the other. 

(b) By restoring anything acquired without consent of its 
owner. C.C. 1708-171^ 3512. 3514-3521, 3526, 3531, 3543, 
43, 49, 52, 54. 

5. Evil motive does not render a lawful act illegal. 158 Cal. 551. 



525. All actions are in their nature and purpose either an action at law or an 
action in equity, and their difference appears either, (Sec. 11 ante) 
First : In the nature of rights and duties involved : 

1. Only legal rights are recognized in actions at law. 

2. Both equitable and legal rights are enforced in equitable ac- 
tions. 

Second : In the principles applied in procedure : 

1. As to parties who may sue or be sued, or joined. 

2. As to right to jury trial. C.C. P. 592. 

3. As to auxiliary remedies wdiich may be followed. 2 Cal. 463, 
590. 

Third : In the relief which may be awarded or obtained. 1 Pom. 
Eq. Jur. Sees. 108-117; Pom. Rem. 8-13; 1 C.J. 1042. 



526. Actions to obtain following relief are always actions at law : 

1. To recover damages to be enforced by execution on defendant's 
property. 

2. To recover possession of real or personal property. 

3. This is the only relief obtainable in actions at law. 1 Pom. Eq. 
Jur. Sec. 109 ; C.C.P. 592, 1022 ; 1 C.J. 1045. 



527. Actions for the following purposes are essentially equitable actions : 

1. To declare and fix right and title of parties in property. 

2. To restore parties in the right and title to property or other rights. 

3. To restrain and prevent the commission of wrongs to person or 
property. 

4. To compel specific performance of contracts and duties. 

160 



5. To compel reformation, rescission, cancellation, re-execution of 
contracts and acts. 

6. To award pecuniary compensation, and 

(a) Enforce it as a lien on specific property. 

(b) Compel payment out of specific fund. 

(c) Enforce it on property seized by provisional process. 

7. To compel an accounting of acts and transactions. 

8. To confer or remo\e ofificial functions. 

9. To establish or destroy status of persons. 1 Pom. Eq. Jur. Sec. 
112; 167 Cal. 735: 158 Cal. 474; 1 C.J. 1045; 8 Stand. Proc. 371. 



528. Generally the action at law must be pursued and equitable remedies 
cannot be resorted to when 

1. There is a plain, speedy and adequate remedy at law. 

2. Pecuniary compensation may be estimated and aiTord adequate 
relief. 

3. The wrong' does not inflict irreparable damage or injury. 

4. Equities are equal, the law prevails. 

5. AVhen party guilty of laches — equity aids only the vigilant. 164 
Cal. 591 : 162 Cal. 141 ; 156 Cal. 643 ; 153 Cal. 630; 154 Cal. 456; 149 
Cal. 627. 



529. When Court of Equity takes or has jurisdiction of the cause or sub- 
ject matter it will grant full and complete relief, — legal or equitable — 
available in the case. 

1. AA'hen equitable relief not available, may award damages only. 
149 Cal. 126. 

2. INIay award both legal and equitable relief in same action. 

3. May grant equitable relief only. 166 Cal. 441; 143 Cal. 90; 167 
Cal. 406, 735: 161 Cal. 42; 159 Cal. 559; 158 Cal. 474; 19 L.N.S. 
1064 notes; 151 Cal. 313, 732. 



530. All actions are in efifect, either In Rem or In Personam — (Sec. 11 ante) 
First : Actions at law may be both — 

1. Judgment or claim for damages only is always In personam. 

2. For the possession of real or personal property, it is In rem. 
Second : Generally equity acts only In personam, but its decrees are 

in effect In rem when it has jurisdiction over thing involved, and 

1. Adjudicates the title, or restores it to owners, or 

2. Enforce liens or claims thereon, or 

3. Adjudicates the status of the person. C.C.P. 1908; 60 Cal. 125; 
22 Cvc. 1102 notes; 150 Cal. 306; 157 Cal. 22; 112 Cal. 101; 1 
CJ. i041. 



531. Special proceedings are remedies provided by statute dift'erent from ac- 
tions, and to obtain relief in kind or by means dift'erent from those pro- 
vided in or by actions, (Sec. 14 ante) 

1. Some relate to legal rights and duties not subject of actions. Sees. 
604, 881. 892, 740 post^ 

(a) Mandamus, certiorari, prohibition, election contests, etc. 

2. Some eft'ect taking or transfer property or changing status not 
available in actions. 

161 



(a) Enforcinj4' statutory liens — mechanics, street, taxes, etc. 
Sec. 665 post. 

(b) Partition, condenmatidn, of ])r(i])er4;y. Sees. 843, 845 post. 

(c) Probate, i^uarcHansliip. insolxency, sole traders. Sec. 724 
post. 

(d) Dissolution corporations, change of name. etc. Sees. 734, 

yyj post. 

3. Some for recovering real pro])erty or judgments in addition to 
actions. 

(a) Forcible entry and unlawful detainer of real ])roperty. Sec. 
819 post. 

(b) Confession of judgment, or arbitration. 

(c) vSubmitting controversy without action. Sec. 550 post. 

4. They do not include and must be distinguished from 

(a) Statutory remedies in aid of actions — Provisional Rem- 
edies. (Sec. 294 ante) ; vSup])lemental Proceedings, etc. Sec. 
432 ante. 

(b) Statutory provisions affecting proceedings in actions — di- 
vorce, cpiiet title, foreclosure mortgages. Sees. 668, 701, 827 
post; 1 C.J. 1010. 



532. The different remedies or theories arising or available in the various 
relations of parties are too numerous to specify, but may be illustrated 
by following examples (5 Stand. Proc. 98; 15 Cyc. 253) : 

1. As to existence of contract. 

1. Every action must be prosecuted on theory of contract or tort. 

2. If contract exists, then on theory either 

(a) Contract is valid and subsisting — sue for benefits or dam- 
ages arising by its terms from breach thereof, or 

(b) Contract is invalid or ended — and sue to recover relief al- 
lowed on such theory. 166 Cal. 333. 

3. Each such theories are inconsistent and election is recjuired. 129 
Cal. 68. 

2. Breach of Contracts for payment of money only. 

First : Remedies in favor of creditor — 

1. If valid, sue to recover agreed sum with interest as liquidated 
damages. 

(a) In aid thereof, may sue to set aside any conveyance of 
property made by debtor to defeat. Sec. 661 (3d) post. 

2. If invalid, sue to recover consideration given therefor. 
Second : Remedies in favor of debtor. 

1. If invalid, sue to rescind and cancel — or (Sec. 553 post) 

2. If valid or not — defend when suit is brought to enforce. Sec. 
203 ante. 

3. Breach Contract containing mutual covenants — 

Either party may pursue any one of these remedies or theories. 

1. Treat contract as rescinded, and sue upon (piantum meruit, or 
damages for part performed, or 

2. Keep contract alive by tender and sue for performance when 
it matures, or 

3. Treat contract as ended for performance and sue for profits or 
other damages suffered. 149 Cal. 60, 64; 166 Cal. 30; 165 Cal. 
497; 163 Cal. 617; 168 Cal. 776. 

162 



4. Breach Contract on Sale Personal Property. 

First : Remedies of seller — 

1. If property delivered and title passed— sue to recover agreed 
price, or reasonable value if price not agreed to. 

2. If propertv not delivered and buyer refuses to receive, either 

(a) Store or retain property for buyer and sue for agreed 
price, or reasonable value if price not agreed. 

(b) Sell property for buyer, and sue for difference between 
price agreed and price obtained, or 

(c) Keep property and sue for difference between agreed 
price and market value. 103 Cal. 458; 19 Cal. App. 304; 
15 Cal. App. 415. 

3. If possession delivered to buyer Init title retamed until pay- 
ment of price, either 

(a) Sue to recover possession of property and relmquish 
claim to price, or 

(b) Sue for price and relinquish claim to possession. 109 Cal. 
3S3; 154 Cal. 265; 158 Cal. 306; 23 L.N.S. 144; 155 Cal. 
459; 20 Cal. App. 651 ; 11 Cal. App. 379. 

4. In addition to action for price seller may enforce any hen he has 

(a) Chattel mortgage or pledge given by contract. 

(b) Seller's lien while property is .in his possession. 

(c) Stop deliverv in transit and recover property and then en- 
force lien. C.C. 3049, 3076-3080. 

Second : Remedies of buyer : — 

1. Present any defense he has to any of seller's remedies. 

2. Counter-claim or sue for breach of warranty or other terms of 
contract. 

3. Tender and deposit price and sue to recover possession of 
property. 

4. Rescind and sue to recover part of price paid. 

5. In some cases, may sue for specific performance of contract. 

6 Treat contract as ended, and sue for damages for non-delivery 
or other breach. 163 Cal. 256 ; 19 Cal. App. 628. 

5. Breach Contract to convey Real Property. 

First : Remedies of Vendor : 

1. Remain inactive, and retain money paid on contract, or 

2. Sue for price agreed when due, tendering deed on last pay- 
ment or damages for breach, or 

3. Rescind, and tender back part of price paid, or 

4. Sue to recover possession of property in ejectment or quiet 

title, and relinquish price. 166 Cal. 302 ; 154 Cal. 446. 

5. Sue to foreclose his vendor's lien under contract. 

(a) In same manner as foreclosure mortgage, or 

(b) Equitable foreclosure— Court granting a time to perform 
and on failure therein terminating all rights under con- 
tract. 143 Cal. 90; 167 Cal. 594. 

Second : Remedies of buyer — 

1. Present any available defenses to any such remedies. 

(a) Failure title no defense while vendee holds possession. 

2. Rescind and sue to recover part price paid, or 23 Cal. App. 136. 

3. Sue for specific performance of contract, or 

4. Treat contract as ended, and sue for damages suffered by 
breach. 161 Cal. 42. 

5. Vendee while in possession cannot defend or maintain any suit 

163 



\\ithuut ix'ivini;- j^rice. 123 Cal. 1; 156 Cal. 103; 151 Cal. 531; 
163 Cal. 16; 1<) Cal. App. 161. 

6. Contract Induced by Fraud. 

Either ])arty may either 

1. Affirm contract, and sue for its breach as on contract, or for 
dania£;es caused by the fraud, or 

2. Rescind contract, restore what he has received and sue for what 
he has lost as in tort. 107 Cal. 243; 129 Cal. 68; 31 L.N.S. 910; 
143 Cal. 87; 156 Cal. 221 ; 10 Cal. App. 79, 708; 116 Cal. 270; 
168 Cal. 507. 

3. Or defend on ground of fraud when sued. 23 Cal. App. 611, 131 
Cal. 379; 

7. Personal Property obtained by Fraud or other Tort. 

I. AA'hen olitained by owner's consent, owner may 

1. Affirm transaction, and sue for price agreed, or reasonable 
value if no price agreed, or 

2. Rescind, and sue to recover possession of property, or its 
value, or 

3. Sue for damages occasioned bv fraud or other tort. 153 Cal. 
511; 156 Cal. 707. 

II. When obtained without owner's consent, owner may 

1. Affirm taking and sue to recover value of property on im- 
plied contract, or 

2. Sue in tort, and recover possession or damages in conver- 
sion. 43 Cal. 380; 87 Cal. 15; 89 Cal. 178; 156 Cal. 711 ; 164 
Cal. 620. 

8. Real Property obtained by Fraud or Tort. 

I. If title not conveyed, owner may 

1. Rescind an}^ contract and recover property, or affirm and 
enforce rights thereunder. 143 Cal. 90. 

2. Sue to recover possession, with damages, or cptiet title if no 
contract, or 

3. Sue to recover any other damages stistained thereby. 

II. If title is conveyed, owner may 

1. Sue to set aside conveyance and recover property, or 

2. Sue to declare a trust, and compel reconveyance and de- 
livery property. 

9. Against Carrier. 

1. Passenger for injury to person may sue on contract, or on 
the tort. 

2. For loss or injury of freight, sue on contract — no tort. 

(a) If loss or injury be willful, sue either on contract or 
tort. 

10. Landlord and Tenant. 

AMien tenant repudiates lease, landlord may either, — 

1. Rest upon the contract or sue for rent as it becomes due, or 

2. Take possession of premises and sue for damages. 163 Cal. 124; 
162 Cal. 602; 90 Cal. 507. 

11. Conspiracy. 

There is no action for conspiracy alone. The existence of a con- 
spiracy is available or proper to be shown in action for tort al- 
leged to have been committed bv several persons, to hold them 
as^ joint tort feasors. 166 Cal. 121; 148 Cal. 284; 154 Cal. 581; 
152 Cal. 201; 124 Cal. 100. 

164 



LECTURE 40. 
Actions or Proceedings to Recover Damages only on Contracts or Torts. 

535. The character of snch actions slightly varies with circumstances. 

1. Always legal so far as fixing amount of damages, and the judg- 
ment entered. Sees. 11, 526 ante. 

2. May be equitable as to rights involved and principles determining; 
in cases 

(a) Partial or equitable assignments. Sec. 85 ante. 

(b) Damages granted in lieu of equitable relief in equity act- 
tions. Sec. 529 ante. 

(c) In some cases of fraud, mistake or accident, etc. Sees. 11, 
T^l~ ante. 

3. Are usually actions in personam — against the person only. 

(a) When property attached or seized by other process therein 
to extent of such property so seized is action in Rem, or 
against such property. Sees. 11, 530 ante. 



536. Damages are the compensation awarded a party for the detriment suf- 
fered by a violation of his rights or in lieu of rights or property lost, 
and are thus classified. 

1. Liquidated — an amount fixed by contract, or by a judgment. 110 
Cal. 674. 

2. Unliquidated — when not so fixed and must be established by evi- 
dence. 

3. General or compensatory — those the law implies according to a 
fixed measure or standard. 17 Cal. App. 684; 71 Cal. 197; 109 Cal. 
249. 

4. Special — those actuallv suiTered but not implied in general meas- 
ure provided. 157 Cal". 240; 17 Cal. App. 684; 71 Cal 163. 

5. Exemplarv — those allowed bv law as a punishment or for an ex- 
ample. 162 Cal. 54; 119 Cal.' 266; C.C. 3294. 

6. Nominal — allow^ed for violation of right, when actual damage not 
shown. C.C. 3360; 159 Cal. 765; 108 Cal. 197; 7'^ Cal. 184. 

7. Penal — fixed bv law for violation of its provisions. 20 Cal. App. 
142; 15 Cal. App. 705; Stat. 1911 p. 796; 13 Cyc. 12-135; 13 Cal. 
App. 589. 



537. The measure of damages recoverable is fixed by statute in many par- 
ticular instances but excepting these, the general measure is as fol- 
low^ s : 
1. For breach of contract — 

(a) The amount which will compensate for all detriment prox- 
imately caused thereby or 140 Cal. 342. 

(b) A\'hich, in ordinary course of things, would be likelv to re- 
sult therefrom. 161 Cal. 390; 150 Cal. 56. 

(c) Contract to pay mone}' — the amount due thereon with in- 
terest. 

(d) Parties cannot fix in contract amount of damage for its 
breach, except when from nature of case impracticable or ex- 
tremelv difficult to fix actual damage. 125 Cal. 563 ; 144 Cal. 
500; 162 Cal. Ill: 135 Cal. 401; \\ Cal. App. 348; 3 Cal. 
App. ZZS; 110 Cal. 674; C.C. 1670, 1671. 3300-3319, 3353- 
3360; 163 Cal. 200; 158 Cal. 567; 18 Cal. App. 483; 12 Cal. 
App. 508; 13 Cyc. 155-169. 

165 



2. For torts or wroiii^s — 

(a) The amcnint which will c<)in])cnsate for all detriment jirox- 
imately caused thercb}', whether it could have been an- 
tici])ated or not. 

(I)) In such cases, exeni[)lary daniai.',es may i)e allowed when 
defendant has been s'uiltv of oppression, fraud, malice, ex- 
press or implied. C.C. 3294, 3333-3350; 131 Cal. 14; 13 Cal. 
App. 72\ 12 Cal. Ai)p. 50<S ; IS Cal. A])p. 14; 17 Cal. .\pp. 
430; 13 Cyc. 136-155, 170. 

3. All damai^es accruins.^" to date of trial nia\' be recovered. 16 Cal. 
App. 441 ! 13 Cyc. 254. 



538. The persons by and as^aiiist whom such actions may be maintained on 
contracts : 

1. By a party thereto, or executor, administrator, assignee or suc- 
cessor in interest. Sec. 83, 85, 97 ante. 

2. By anv person in wdiose faAor contract is express! \' made. 164 
Cal. 35'5; C.C. 1559. 

3. No other third person, not in ])rivitv, can sue thereon. 110 Cal. 
339. 

4. Against a party, or his executor, administrator. 

5. Against a guarantor, surety or person who has assumed burdens 
of contract. 163 Cal. 127 ; 161 Cal. 257. 

6. Third person inducing or causing- breach, cannot l)e sued on con- 
tract. 93 Cal. 55 ; 98 Cal. 578 ; 38 Cvc. 508. 



539. The persons by and against whom such actions may be maintained 
on torts : 

1. By person injured, his executor, administrator, assignee or suc- 
cessor in interest. 

(a) Claims for fraud or personal torts cannot be assigned and 
do not survive death, 'z^l Cal. 245; 1 C.J. 195-202 ;' Sees. 85, 
97 ante. 

(b) Except claims for torts causing death in cases provided by 
statute. 6 Stand. Proc. 361-385; C.C.P. Zll \ 164 Cal. 568; 
Sees. 97, 101 ante; 52 L.N.S. 885, 1215. 

2. Against all tortfeasors, or any one or more of them, and when 
claims survive death against executor or administrator. 152 Cal. 
705 ; Sees. 109, 97 ante. 

3. Against anv Guarantor, Suretv or Superior liable for acts of per- 
son committing tort. C.C. 2806. 2836, 2338-2339. 



540. Such actions are brought in Superior or Justice Courts according to 
amount of damages claimed, and are transitory actions, brought and 
tried in the venue heretofore explained. Sees. 51-54, 62, 65 ante. 



541. The necessary alleg;ations to state a cause of action on express con- 
tracts are Sees. 128-136 ante. 
First: On contracts for payment of monev only. 110 Cal. 674; 126 
Cal. 176. 

1. Allege making or execution of contract showing amount and 
when due and terms. 163 Cal. 124. 

166 



2. That defendant has not ])aid same: nr if ])aid i)art, 19 Cal. App. 
349; 99 Cal. 606. 
(a) Allege credits and anumnt of balance nni)aid. 
Second: On contracts for i)a\nient of money after ])erforniance of 
covenants by plaintifY. 

1. Allege making or execution of contract showing amount and 
covenants. 

2. Allege performance by ])laintiff, either 

(a) By alleging ])articular acts done by ])laintiff in perform- 
ance, or 

(b) Generally, that plaintiff has performed all covenants of 
contract on his part. 158 Cal. 567; 19 Cal. App. 304; 
157 Cal. 221; 156 Cal. 776. 

3. Allege money unpaid, or credits and balance unpaid. 
Third : On contracts containing mutual covenants for damages. 

1. Allege making or execution of contract as before. 165 Cal. 394. 

2. That plaintiff has performed all covenants on his part. 168 Cal. 
140. 

3. Particulars wherein defendant has failed to perform. 163 Cal. 
127; 70 Cal. 75. 

4. The general damages suff'ered bv ])laintift' and the amount. 162 
Cal. 602. 

5. The facts showing special damages and amounts and particular 
items. 6 Cal. App. 184; 153 Cal. 585; 96 Cal. 644; 4 Cal. App. 
499:71 Cal. 163; 98 Cal. 644. 

Fourth : In all cases where price not agreed, allege reasonable val- 
ue. 166 Cal. 30; (On contract of indemnity against liability, 166 Cal. 
420) : 163 Cal. 200; 24 Cal. App. 536; 18 Cal.^\pp. 227; 14 Cal. App. 
632; 11 Cal. App. 343. 



542. All contracts are alleged in folUjwing manner — Sec. 136 ante. 

First: A written contract may be alleged in all cases in either one 
of three ways : 

1. Copy contract in full in body of complaint with allegation of its 
execution, or 

2. Attach a full copy as Exhibit to complaint, referring to it in 
allegation of execution, or 

3. Allege contract in its legal effect, care being taken to so allege 
it correctly and fully. 

4. Not required to allege it is in writing, even when law requires a 
writing'. 158 Cal. 56/ ; 19 Cal. App. 304. 

5. Anv ambiguous, uncertain or technical terms must be explained 
in allegations. Sec. 136 ante. 74 Cal. 313 ; 80 Cal. 613 ; 1 Cal. App. 
161. 

Second: If action is based on oral contract re(|uired by law to be in 
writing pleader must 

1. Allege facts showing not written through fraud of defendant, or 

2. Facts showing defendant is estopped from pleading Statute 
Frauds. 82 Cal. 657; 149 Cal. 198; 162 Cal. 427; 24 Cal. App. 
295. 303. 

Third : Other oral contracts are alleged 

1. Set forth its terms and covenants; 

2. Allege the consideration thereof. 96 Cal. 641; 158 Cal. 576; 9 
Cvc.'717. 

167 



Fourth: Tlic common counts may be used in actions involvini^ ex- 
press contracts in following cases : 

1. When contract is executed, and suit is for amount due — when 
executory, suit must be on contract. 

2. When contract partly perf(M-med has been abandoned, rescinded 
or ended by some act of defendant. 

3. When contract not performed in time or is void but results in 
benefit to defendant. 82 Cal. 230; 109 Cal. 430; 113 Cal. 97, 101 ; 
141 Cal. 308. 312; 146 Cal. 667; 166 Cal. 30. 333: 12 Cal. App. 
228. Sec. 136 ante. 



543. The necessary allegations to state a cause of action on implied con- 
tract, are: (Sees. 128-136 ante) 
First : All the facts sul)stantially as on other contracts. 

1. Relation of parties, or their acts from which contract is im- 
plied by law. 

2. Amount thereof or reasonable value and when payable. 

3. Performance by plaintifif of all conditions on his part. 

4. Non-payment or non-performance by defendant. 

5. Amount unpaid or breach and damages suffered ; or 

Second: Plaintiff may allege his claims bv common counts: (Sec. 
136 (9) ante.) 

1. Goods, wares and merchandise sold and delivered. 

2. Money had and received bv defendant to use of plaintiff. 146 
Cal. 667. 

3. Work and labor performed, etc. 166 Cal. 333, 30. 

4. All may be included in one count or several, as circumstances 
permit. Sec. 142 ante. 

Third: This applies to implied contracts arising from waiver of tort. 
135 Cal. 91 ; 102 Cal. 188; 123 Cal. 187; Sec. 523 ante. 



544. The necessarv allegations to state a cause of action on tort are — Sec. 
128-136 ante. ' 

1. Allege facts showing relation of parties or plaintiff's right or 
ownership of property 

(a) If relation by contract, allege it as in other cases above. 

2. Allege facts showing particular acts of defendant and their wrong- 
ful character. 

(a) If fraud, the particular facts showing must be alleged ex- 
cept to defeat a defense. 

3. Allege particular facts showing how such acts have injured or 
damaged plaintiff. 165 Cal. 721. 

4. Allege general damages and amount thereof. 80 Cal. 574; 98 
Cal. 644^: 145 Cal. 757.^ 

5. Allege particular items and amounts of any special damage. 

6. If exemplarv damage claimed, allege facts of oppression, fraud, 
malice, etc. 151 Cal. 14; 121 Cal. 216.^^ 

7. That such damages have not been paid. 166 Cal. 121, 394; 164 
Cal. 343; 157 Cal. 240; 12 Cal. App. 1 ; 145 Cal. 757. 

8. To recover a penalty — allege all statutory conditions — 20 Cal. 
App. 142; 13 Cal. App. 589; 18 Cal. App. 30.' 

168 



545. In all cases, if plaintiff is not payee or party injured, facts must be al- 
leged showing assignment or interest acquired by plaintifif entitling 
him to maintain action. Sec. 86 ante; 113 Cal. 9.1 ; 79 Cal. 81. 



546. In prosecution of such actions, either on contract or tort, all the pro- 
visional remedies (except claim and delivery) may be used under the 
varying circumstances as heretofore explained. Sees. 294, 302, 319, 328, 
340, 346. 348. 351 ante. 



547. The defenses which a defendant may make to such actions are as nu- 
merous as the varied relations of parties, but may be any of those ex- 
plained in Lectures No. 16 and 17, as may be applicable under facts of 
each case. Failure Consideration, 166 Cal. 479; 164 Cal. 424; Sees. 189, 
201-206 ante. 



548. Defendant may also plead any cross-demands he may have as counter- 
claim or cross-complaint under rules explained in Lectures No. 18 and 
19 which may be available under facts. 

1. No claim for tort can be plead in action on contract or tort, and 

2. No claim on contract can be plead in action on tort, unless 

3. It arises out of the same transaction. 166 Cal. 387; 12 Cal. App. 
Z7; Sees. 214, 225 ante. 



549. All such actions are tried by jury. Court or Referee as follows: 

1. Must be by jury unless expressly waived. 

(a) Except any equitable issues or defenses may be tried by 
Court alone. Sec. 383. 384 ante. 

2. If jury waived, trial by Court alone or Referee if ordered. Sees. 
367, 395 ante. 



Special Proceedings. 

550. The only Special Proceedings under California Code applicable to such 
matters are : 

1. Confession of Judgment without Action 
First: May be made in either Superior or Justice Courts having jur- 
isdiction of amount, either 

1. For money due or to become due, or 

2. To secure any person against contingent liability on behalf of 
defendant, or both 

Second : Make statement in writing signed and verified by defendant, 
containing 

1. Authority to enter judgment for a sum specified. 

2. If on first ground, state concisely facts out of which it arose, 
and showing sum is justly due or to become due. 18 Cal. 576. 

3. If on second ground, state concisely facts constituting liability 
and showing sum does not exceed such liability. 

169 



Third: Slateincnt tiled with Clerk Sui)erior Cuurl, or Justice, who 
enters jtid^nient in accordance with statement, and costs. C.C.P. 
1132-1135 ;44 Cal. 481 ; 11 Knc. FM. and Prac. 0/5-1026. 

2. Submitting" ControNcrs}- without Action. 

First: May he made in Su])erior or Justice Court haxim;' jurisdiction 
of matter, on 

1. Any (|uestiou in dili'erence which uiit^ht l)e subject of Ci\il 
action. 

Second: ]\Iake statement in writini^' si,L;iie(l and xerified by both 
parties, showing' 

1. The particular ptjints or (|uestions in controversy. 

2. • All the facts upon which controversy depends. 

3. That such controversy is submitted for decision of Court. 

4. That sttch controversy is real and submitted in good faith to 
determine rights of parties. 

Third : The statement is then filed in Court as other papers are filed. 
Fourth: Court then hears and determines matter on statement alone, 

and renders judt^ment as if an action is pendinc^', except without 

costs incurred before trial. 
Fifth : ludgment may be appealed and enforced as in an action. C.C.P. 

1138-ri40': Z7 Cvc. 346; 1 Enc. PI. and Prac. 385; 1 Stan. Proc. 

734; 146 Cal. 111. 

3. Arbitration as an Order of Court. 

First: Persons capa])le of contract may submit to arbitration as an 
order of Court 

1. Any controversy which might be subject of Civil Action, except 
(a) Question of title to real property in fee or life, wdiich ex- 
ception does not include partition or b<^undaries real prop- 
erty, 163 Cal. 182. 
Second: Make agreement in writing, signed by all parties, and stat- 

1. The particular question or points in contro^■ersy. 

2. That same is submitted to decision of one or more persons as 
arbitrators — naming them. 

3. That all parties shall be bound by their decision. 

4. That it be entered as an order of Superior Court of County 
named. 

Third : Agreement is then filed with Clerk of Court named — cannot 
be filed in Justice Court. 

Fourth : Copy of agreement should be gi\en the arbitrators ap- 
pointed. 

Fifth: Arbitrators must then qualify li}' taking required oath. 

Sixth : Arbitrators must then fix hearing, receive evidence, and make 
their award. 

Seventh: The award is in writing signed by arbitrators or majority 
filed with Clerk, and copies given parties. 

Eighth: After notice on parties, if no objection, Clerk enters judg- 
ment on award. 

Ninth: On motion after notice Court may modify or correct award, 
or may set it aside and order new hearing before same or other 
arbitrators. 159 Cal. 155; 2 Cal. App. 237: 96 Cal. 617; C.C.P. 1281- 
1290; 12 Cal. App. 238; 3 Cyc. 581: Common law arbitration 163 
Cal. 99, 182; 2 Stand Proc. 593. 



170 



LECTURE 41. 

Cancellation — Rescission — Reformation — Reissuance Contracts. 

553. A\ e here consider actidus fur tliis relief alcme, but relief for these sev- 
eral matters may be obtained in other actions when necessary to obtain 
other relief. 

1. Instruments mav be cancelled in actions to (|uiet title and to re- 
recover property. 152 Cal. 634; 79 Cal. 443; 132 Cal. 691 ; 133 Cal. 
489. 

2. Rescission, reformation, may l)e had to prej^are for defense and 
other actions for damages or recover property, or by cross-com- 
plaint. 

3. Instrument may be reformed and enforced in same action. 149 
Cal. 122; 153 Cal. 300. 

4. Reissuance or reformation of instrument may be compelled and 
enforced in same action. 6 Cvc. 285 ; 24 Am. and Eng. Enc. L. 609; 
164 Cal. 44; 167 Cal. 553. 



554. The character of actions, or issues in other actions for such purposes is 

1. Equitable actions — proceeding on principles of equitv. 152 Cal. 
142; 

2. Action In Personam — acting on person of parties. 153 Cal. 245; 
132 Cal. 691 ; 102 Cal. 627; Sees. 527, 530 ante; 6 Cyc. 286; 18 Enc. 
PI. and Prac. 750. 



555. Such actions can only be brought in a Superior Court and as to venue 
are transitorv in nature. Sees. 51, 62, 65 ante; 18 Enc. PI. and Prac. 790. 



556. Actions for cancellation, and rescission are very similar, but one goes 
further than other. 

1. Rescission simply declares contract terminated and restores par- 
ties to former status. Sec. 563 post. 

2. Cancellation does all this and in addition orders contract deliv- 
ered up and cancelled. Sec. 557 ]H)st ; 6 Cyc. 285 ; C.C. 3406. 3412. 



Cancellation. 

557. Action for cancellation is brought to obtain judgment requiring defend- 
ant to deliver up and destroy or terminate any written instrument, and 
applies 

1. To notes, mortgages, deeds, leases or other written instruments, 
ex,cept 

(a) Those void on their face or on face of another necessarv to 
its use. 

2. \Vhen such instrument is void or voidable as against plaintiff, and 

3. Reasonable apprehension it may cause injury to plaintiff if out- 
standing. 

4. Instrument mav be cancelled in whole or part. 166 Cal 442; 
C.C. 3412-3414;' 162 Cal. 124; 160 Cal. 632; 23 Cal. App. 409; 163 
Cal. 740; 152 Cal. 634; 6 Cal. App. 35; 102 Cal. 627; 6 Cvc. 286; 
18 Enc. PI. and Prac. 754. 

171 



558. The parties by and against whom such acticMi may l)e maintained — 

1. By any person affected by instrument and ai;ainst whom it is 
void or voidal)le. 

2. Against all persons havini^ an interest in it or in ])ropertv affected 
by it. 162 Cal. 124. 

3. Instrument cannot l)e cancelled at^ainst a bona fide purchaser for 
value and without notice. Pom. Rem. 276-278; 6 Cvc. 319; 18 
Enc. PI. and Prac. 795 ; 151 Cal. 732. 



559. The necessary allegations to state a cause of action for cancellation are 

1. Execution of Instrument, setting out a copy or its apparent legal 
efifect. Sec. 542 ante. 

2. Facts showing how plaintiff is liable thereon or afifected thereby. 

3. Facts showing defendant's claim interest in instrument and seek- 
ing to enforce it as valid. 

4. Facts showing instrument is void or voidable for reasons not ap- 
pearing on face. 162 Cal. 340. 

5. That reasonable apprehension it will injure plaintiff if left out- 
standing. 

6. In case delay in bringing action allege reasons for delay. 21 Cal. 
App. 456. 

7. Ofifer to do equity by restoring anything of value or benefit re- 
ceived by instrument. 159 Cal. 559; 23 Cal. App. 409; 6 Cvc. 324; 
18 Enc. PI. and Prac. 802; 102 Cal. 627; 124 Cal. 264. 



560. The defenses, counter-claims or cross-complaint which may be plead 
by defendants are 

1. All defenses by denial under rules heretofore explained. Sec. 
195 ante. 

2. All available defenses by new matter, especially (Sees. 203, 204 
ante.) 

(a) Laches, or statute of limitations — delay in bringing action. 

(b) Estoppel by conduct or ratification. 

(c) That defendant is purchaser for value and without notice. 

3. Counter-claim or cross-complaint to declare instrument valid, and 
enforce same or 

(a) If declared void, to recover monev or benefits lost under it. 
Sec. 213, 225 ante; 6 Cvc. 331; 18 Enc. PI. and Prac. 843, 
847. 



561. The only Provisional remedies available are injunction to restrain 
transfer of instrument and rights under it. Perhaps a Receiver may be 
appointed in some cases to hold instrument until judgment is entered. 
Sees. 320, 331 ante. 



562. All such actions are tried by the Court, or a jury may be allowed as 
in other equity cases. Sec. 385 ante ; 18 Enc. PI. and Prac. 850. 

172 



Rescission. 

563. Rescission is the revoking or terminating a contract, oral or written, 
or a contractual transaction by a party thereto for cause making it 
voidable, and an action may be brought to enforce the rescission and 
compel restoration to former status. 

1. Applies to contracts only — not to transactions arising out of torts. 

2. Applies to all kinds of contracts or contractual relations, which 
are voidable, except (156 Cal. 191) 

(a) To those wherein parties cannot be restored to original 
status. 78 Cal. 397; 165 Cal. 319; 22 Cal. App. 81; 16 Cal. 
App. 508. 

(b) To contracts void against public policy — in such case no 
contract to rescind. 37 Cal. 168. 

1. Except while executory. 37 Cal. 670. 

3. Rescission must l)e in toto — not as to only a part. 107 Cal. 243. 

4. Treating contract as forfeited or abandoned for non-performance 
not a re^scission. 162 Cal. 539; 152 Cal. 740; but see 164 Cal. 446; 
20 Cal. App. 616; 155 Cal. 459; 109 Cal. 417. 



564. A party thereto may rescind a contract, and have such rescission ad- 
judged in an action. 

1. When consent thereto was given by mistake, or obtained by 
duress, menace, fraud or undue influence. 159 Cal. 142; 20 Cal. 
App. 633; 152 Cal. 772. 

2. A\nien consideration therefor fails in whole or part through fault 
of other party. 149 Cal. 117. 

3. When consideration therefor becomes entirely void from any 
cause. 

4. When consideration before rendered to him failed in any material 
respect from any cause. 161 Cal. 659; 68 Cal. 336. 

5. By consent of all parties. 

6. \\ hen contract unlawful for causes not on face and parties not 
equally at fault. 

7. A\'hen public interest will be prejudiced bv permitting it to stand. 
C.C. 3406. 1689. 

8. By buyer of personal property by bidding at auction, refusal of 
inspection, breach of warranty. C.C. 1797, 1785-6. 

9. By seller when vendee fails to pav according to contract. C.C. 
1749. 

10. By one partv upon default in performance of other. 158 Cal. 273; 
C.'C. 35, 39, 2610. 2562, 2569; 164 Cal. 446; 19 Cal. App. 7. 



565. Rescission, without consent, can be accomplished by aggrieved party 
taking following steps promptly after discovering cause therefor. 
1. Give opposite party notice — better in writing — but oral sufficient. 

(a) That partv rescinded contract or transaction — describing it. 
148 Cal. 539. 

(b) Tender or ofifer to return all he had received under con- 
tract or transaction. 129 Cal. 68; 161 Cal. 659; 152 Cal. 
383; 148 Cal. 539. 

1. Except what he is entitled to retain or of no value, 
165 Cal. 112; 156 Cal. 191. 

(c) Demand return of all he parted with therein. 

173 



2. If notice and doniand not complied with, action mav be com- 
menced. 165 Cal. 15, 45, 319, 727; 164 Cal. 676, 680; 167 Cal. 594; 
19 Cal. App. 7; 168 Cal. 771. 



566. Snch action is same in cliaracter, l)ron,!4ht in same Conrt and venue 
and tried, as above stated in actions for cancellation . 164 Cal. 663; Sees. 
555, 562 ante. 



567. Necessary allei^ations to state a cause of action are 

1. Making of contract, alleging copy, or facts showing nature and 

terms of transaction. 
2 The particular facts showing cause for rescission and injurv there- 

by. 

3. Facts showing notice, tender and demand and refusal. 

4. Facts showing" cause of any delay or laches in bringing action or 
giving notice. 

5. Ofifer to do ecpiity bv restoring everything received. 152 Cal. 383; 
164 Cal. 676. 



568. The only provisional remedies which may be used are injunction, Re- 
ceiver and Deposit under circumstances heretofore explained. Sees. 
320, 331, 341 ante. 



569. The parties by and against whom Rescission may be afifected are 

1. By party to contract or transaction injured, or his assignee or suc- 
cessor in interest. 

2. Against opposite party or his successor in interest. 

3. But not against adverse claimant to both, nor bona fide purchaser 
for value without notice. Pom. Rem. 276-278. 



570. The defenses, counter-claim or cross-complaint which defendant may 
plead : 

1. Any defense by denial under rules heretofore explained. Sec. 195 
ante. 

2. Any defense by new matter available, including (Sees. 203, 204 
ante) 

(a) Estoppel by conduct or ratification, or fault of plaintifif, or 
his predecessor. 

(b) Laches or statute limitation, in giving notice or bringing 
action. 

(c) Failure to offer or restore benefits received. 

(d) Bona fide purchaser for value and without notice. 

3. May counter-claim or cross-complaint to enforce contract or re- 
cover benefits lost. Sees. 213, 225 ante. 



Reformation of Written Instruments. 

571. An action to revise or reform a written instrument is one to obtain a 
judgment correcting the language or efifect of such instrument to truly 
express the intention of the parties to it. Includes all kinds of instru- 
ments, except (152 Cal. 450) 

174 



1. A will after death of testator. 119 Cal. 57S. 

2. One without consideration, a.^ainst one having a better equity. 
138 Cal. 114. 

3. Those defectively executed — will not make a contract. 

4. Notice mechanic's lien not reformed. 110 Cal. 167; 153 Cal. 680; 
9 Cal. App. 664; 2 Cal. App. 433 ; 137 Cal. 84; 34 Cyc. 904, 923. 



572. Instruments will l)e reformed by judgment when it does not truly ex- 
press the intention of the parties ; 

1. Through fraud, or mutual mistake of the parties, or 

2. Mistake by one, which the other knew or suspected. 

3. So far as can be done without affecting bona fide purchasers for 
value without notice. 

4. Will not substitute new parties. 129 Cal. 663; C.C. 3399-3402. 
1577; 164 Cal. 44, 748; 150 Cal. 587: 106 Cal. 616; 18 Enc. PL and 
Prac. 774; 34 Cyc. 907, 930. 



573. Such actions are of same character, brought in same Court, venue and 
tried as actions for cancellation ; and brought by and against same par- 
ties as above explained. 6 Cal. App. 410; Sees. 555, 562, 569 ante; 34 
Cyc. 904, 950, 953, 967, 964. 



574. Necessary allegations to state a cause of action for reformation are 

1. Execution of written instrument — alleging copy. 

2. Facts showing the error or the intention of parties it does not ex- 
press. 153 Cal. 680. 

3. Particular facts of fraud or mistake producing error and how it 
occurred. 150 Cal. 21 ; 6 Cal. App. 284; 90 Cal. 487; 120 Cal. 67. 

4. Facts showing fraud or mistake not caused bv plaintiff's neglect 
of legal duty.' 150 Cal. 21. 

5. When error discovered, and excuse for any laches or delay. 

6. Offer to do equity by restoring any benefit obtained. 

7. No prior demand necessary. 164 Cal. 748; 24 Cal. App. 723; 153 
Cal. 680: 9 Cal. App. 664; 34 Cyc. 970. 



575. The defenses, counter-claim or cross-complaint available to defendant 
are 

1. Any defense by denial under rules heretofore explained. Sec. 195 
ante. 

2. Any available defense by new matter, especially (Sees. 203, 20-1 
ante.) 

(a) Estoppel by conduct or ratification, or no injury to plaintiff". 

(b) Laches or statute limitations, in bringing action. 150 Cal. 
587. 

(c) That error occurred through negligence of plaintiff'. 150 Cal. 
21.587. 

(d) That defendant is bona fide purchaser for value without no- 
tice and would be injured. 

3. By counter-claim or cross-complaint seek to enforce contract as 
it is and recover benefits lost. Sees. 213, 225 ante; 34 Cvc. 977; 9 
Cal. App. 502 ; 6 Cal. App. 284. 

175 



Re-Issue of Written Instruments. 

576. Provision is made in Codes for siil)stitiiting' copies for lost or destroyed 
pleadings, writs or files in action ; and for manner of proving contracts 
when original is lost; and actions U) C( impel re-issue of private docu- 
ments lost bv conflagration or public calamitv. C.C.P. 1045; C.C. 3415; 
163 Cal. 436; llGCal. 424. 



577. An action may be maintained in equity to ol)tain judgment requiring 
defendant to re-execute and issue to plaintifif a deed, note or other in- 
strument when necessarv to protect his rights. 10 Cal. 529; 47 Cal. 71 ; 
25 Cyc. 1609; C.C. 3415 ;'l66 Cal. 403; 13 Enc. PI. and Pr. 351. 



578. The action may be brought by any person interested in the instrument 
or rights it conveyed or evidenced, and against the person executing it, 
or successor in interest of property, except bona fide purchaser for 
value without notice. Pom. Rem. p. 375 note. 



579. Necessary allegations to state a cause of action for re-issuance of in- 
strument are — 

1. Execution of instrument, alleging copy. 

2. Facts showing it was lost or destroyed unintentionally. 

3. Facts showing necessity of its re-issuance and injury to plaintifif 
if not re-issued. 

4. Demand upon defendant to re-issue and his refusal. 

5. Ofifer to indemnify defendant against loss upon original. 166 Cal. 
404; 13 Enc. PI. and Prac. 353. 



580. Defenses, counter-claim and cross-complaint available to defendants. 

1. All defenses by denial under rules explained. Sec. 195 ante. 

2. Defenses by new matter, including (Sees. 203, 204 ante) 

(a) Instrument obtained by fraud, duress, or without consider- 
ation or otherwise invalid. 

(b) Estoppel or laches or other inequitable reasons. 

3. Might file cross-complaint to rescind, cancel or reform. Sec. 225 
ante ; 166 Cal. 403. 



581. The only Provisional remedy available would be injunction to prevent 
the execution of instrument of similar effect to anyone else. Sec. 331 
ante. 



Action Quia Timet under Contracts. 

582. An action may be maintained to determine adverse claims which one 
party makes against another for money or propertv under an alleged 
obligation. C.C.P. 1050. 

176 



583. This action is equitable, in nature of an. action Quia Timet (Quiet 
Title) or Bill of Peace, In I'ersonam, only in Superior Courts, and 
transitory as to venue. 

1. Adverse claim may be by one party against another claiming 
money or property, under an obligation. 9 Cal. App. 571. 

2. Or by two or more against another not claiming but owing money 
or holdim;- property. C.C.P. 1050; 145 Cal. 192; 136 Cal. 26; 138 
Cal. 558. 



584. Necessary allegations to state a cause of action in such case are : 

1. That plaintiff has possession of money or property. 

(a) State amount of money or describe the property. 

2. If plaintiff claims it, allege ownership or title thereto in him. 

3. If plaintiff' does not claim it, allege that fact, and facts showing 

(a) How and under what circumstances he came in possession. 

(b) If under a contract or obligation allege it as in other cases. 

(c) That plaintiff is willing to deliver to person adjudged to be 
owner. 

4. That defendant makes adverse claims upon plaintiff for such 
money or property. 

5. If plaintiff claims, that defendant's claims are without right or 
foundation 

(a) If under obligation, allege facts showing obligation invalid 
or not binding. 

6. If plaintiff" does not claim, allege he is unable to determine who is 
entitled thereto. 

Pray that defendant be required to set forth claims and Court 
adjudge rights. Sec. 125 ante; 9 Cal. App. 571. 



585. Defendant may make usual defenses by denial or new matter. 
By answer allege his claim or title to money or property. 
By cross-complaint seek to enforce obligation, recover money or prop- 
erty, and to have an accounting to determine same. Sees. 195, 203, 204, 
225 ante; 92 Cal. 419; 138 Cal. 558. 



586. A surety or guarantor for another may maintain an action, either 

1. To compel his principal to satisfy a debt due to another, or 

2. To compel the person to whom debt is owing to proceed against 
the principal, or 

3. To have it adjudged he is released and discharged as surety from 
debt. C.C.P. 1050; C.C. 2845, 2846, 2840, 2850; 117 Cal. 87; 132 
Cal. 154. 



587. Such action is equitable, in personam, brought in Superior Court only, 
and transitory as to venue, and should be brought by surety or guaran- 
tor — successors — against the creditor and principal — their successors. 

177 



588. Necessary facts to state a cause of action therefor are: 

1. Facts shovviiiLi," creation of obli^^ation or debt as in other cases. 

2. Facts showing- ])laintirf' s relation as surety or t^uarantor. 

3. Facts showing" reasons it should be enforced against i)rincipal, or 

4. Facts showing" plaintiff's release or discharge from obligation. 

5. Facts showing reasons for e(|uitable action instead of legal remedy. 



589. Defendant may defend by denial or new matter a\ailable generally; 
may by cross-complaint seek to enforce obligation against plaintiff and 
principal. Sec. 195, 203. 204, 225 ante; 132 Cal. 154. ' 



178 



LECTURE 42. 

Specific Performance of Contracts — Also Legal Duties — Mandamus. 

592. An Action for S])ecific I'erforniance is one to obtain a judij^ment re- 
quiring the defendant to do the jKirticular act in manner provided by a 
contract. 

1. Requiring" payment t)f money (hte under a contract not specific 
performance. 

2. Usually applied to contracts for sale and purchase of property. 

3. Foreclosing mortgage for purchase price — not — 161 Cal. 390; 36 
Cyc. 543. ' 



593. The character of such an action is as follows: 

1. An equitable action — governed by principles of equity. 

2. In personam — acting only on the person, except when property is 
seized in aid of action, or brought to dispose of property within 
jurisdiction of Court; it thereby becomes in rem. 157 Cal. 16; 
13 Cal. App. 715; 3 Pom. Eq. T"r. 1400-1410; 149 Cal. 614; Sees. 
527, 530 ante ; 20 Enc. PI. and Pr. 389, 398. 



594. Such action can be brought only in Superior Court, tried by Court and 
a jurv cannot be demanded and is transitory as to venue. 150 Cal. 466; 
5 Cai App. 247 ; Sees. 51, 62, 65. 385 ante ; 20 Enc. PI. and Pr. 400. 



595. The following contracts cannot be specifically enforced under any cir- 
cumstances (C.C. 3390) : 

1. To render personal service. 136 Cal. 611 ; 119 Cal. 35. 

(a) This includes construction contracts. 

2. To employ another in personal service. 

3. To submit a controversy to arbitration. 

4. To perform an unlawful act, or pay a penalty or forfeiture. 

5. To procure an act or consent wife or third person. 

6. Whose terms are so uncertain that precise act to be done is unas- 
certainable. 163 Cal. 742: 14 Cal. App. 756; 154 Cal. 710; 148 
Cal. 691 ; 154 Cal. 372; 8 Cal. App. 384; 82 Cal. 533: 168 Cal. 234. 

7. Following are examples of contracts not specifically enforceable, 
unless fully performed : 

To pay for land in work and labor — 82 Cal. 46. 

To erect stamp mill and work a mine. 126 Cal. 657. 

To develop oil on lands— 144 Cal. 528. 

To cut down a hill, put in ditch, engine and i)ump — 142 Cal. 342. 

To build and operate a railroad — 153 Cal. 106. 

To erect a building— 19 L.R.A. (N.S.) 1175. 

For construction of levee — 94 S.W. 922 and f>^ Am. St. 753 and 

Notes. 

To support a party for life— 106 Cal. 605; 136 Cal. 605. 

Any such contracts mav be enforced when performed — 153 Cal. 

704. 

Contract to grow and sell trees — 23 Cal. Ayip. 251. 

Contracts hampering railroads in performing ]iublic duties not 

enforceable— 153 Cal. 496, 735. 

179 



596. Other contracts cannot he specifically enforced in favor of or against a 
party under the following circumstances : 

1. Not in favor of one, when not specificall^v enforceable against the 
other, unless (153 Cal. 106.) 

(a) The other has performed his part of it, or (153 Cal. 704; 9 
Cal. App. 212; 119 Cal. 35.) 

(b) When enforceable in part, and party can be compensated as 
to remainder. C.C. 3386. 

2. Not in favor of one who has not performed contract, except 

(a) ^\'here failure is partial, and either immaterial or can be 
compensated. C.C. 3392. 

3. Not in favor of a seller who cannot give to buyer a good title. 
148 Cal. 610. C.C. 3394. 

4. Not against a party under following circumstances : 

(a) When he has not received an adequate consideration. 161 
Cal. 453 ; 10 Cal. App. 144 ; 168 Cal. 562. 

(b) When as to him contract is not just and reasonable. 151 
Cal. 220: 148 Cal. 374. 

(c) When his consent was obtained by fraud, unfair practices 
or unfulfilled promises. 

(d) When his consent was given under mistake, misapprehen- 
sion or surprise. 129 Cal. 283; 168 Cal. 23; 26 Am. and 
Eng. Enc. L. 20. 

5. When plaintifif can be fully compensated in damages. 148 Cal. 374. 

(a) Not presumed breach contract to convey real property can 
be so compensated. 

(b) Presumed breach contract to sell personal property can 
be compensated. 165 Cal. 491 ; 157 Cal. 16; 23 Cal. App. 251 ; 
12 Cal. App. 434; 168 Cal. 23, 556, 671 ; C.C. 3391, 3387. 



597. Subject to foregoing rules, following contracts have been specifically 
enforced : 

1. Contracts to convey real property for money or in exchange for 
property. 

(a) Though signed bv only one party, when other performs or 
ofifers to do so. ^67 Cal. 706; but see 156 Cal. 245; 8 Cal. 
App. 384. 

(b) Oral, when sufficiently performed in part to make it en- 
forceable. (C.C. 1741) ; 24 Cal. App. 303; 15 Cal. App. 670; 
153 Cal. 314, 704; 148 Cal. 1. 

2. Contracts to sell and convey personal property of peculiar charac- 
ter or under circumstances showing damages would not compen- 
sate. 165 Cal. 491. 

3. Contracts to make a will devising property to another. 164 Cal. 
582; 167 Cal. 35, 719; 23 Cal. App. 298: 21 Cal. App. 530: 18 Cal. 
App. 41 ; 6 Cal. App. 152 ; 8 Cal. App. 200. 

4. Against corporation to compel transfer of stock. 166 Cal. 285. 

5. By beneficiary to enforce trust as to personal property. 165 Cal. 
492; 158 Cal. 16. 

6. To compel execution of mortgage. 12 Cal. App. 434; 26 x\m. and 
Eng. Enc. L. 87. 

598. Such actions may be maintained by and against parties to the contract, 
or any person claiming under a party subsequent to the contract, except 
not against a bona fide purchaser for value without notice. C.C. 3395 ; 
Pom.^Rem. 177, 263-265; 167 Cal. 706; 20 Enc. PI. and Pr. 410. 

180 



599. Necessary allegations to state a cause of action for specific performance 
are : 

1. Execution or making of contract, alleging copy. Sec. 542 ante. 

2. If contract oral, facts showing part performance by plaintifif to 
make it enforceable. 

3. Facts showing performance or ofifer to perform by plaintifif. 

4. That plaintiff had made demand on defendant to perform and ten- 
der of what was due. 

5. Facts showing defendant refused to perform after such demand. 

6. Facts showing contract as to defendant is supported by adequate 
consideration, just and reasonable, and plaintiff has no adequate 
remedy at law. 163 Cal. 155, 182, 644; 162 Cal. 740; 14 Cal. App. 
716; 148 Cal. Z77 \ 149 Cal. 614; 153 Cal. 790; 168 Cal. 234, 671. 

7. Facts showing reason therefor in case of delay or laches in com- 
mencing action. 163 Cal. 742; 156 Cal. 643; 160 Cal. 95; 158 Cal. 
290; 157- Cal. 16; 23 Cal. App. 36; 12 Cal. App. 434; 148 Cal. 610; 
151 Cal. 65 ; 153 Cal. 300, 496 ; 20 Enc. PI. and Pr. 434. 



600. The only Provisional Remedies available in such actions are : 
Injunction, and Receiver to preserve property until judgment. 
And deposit when desired to keep good a tender. 12 Cal. App. 434; 
Sec. 320. 331. 341 ante. 



601. The defenses which defendant may plead in such action are: 

1. All defenses by denial under rules explained, and in these cases 
they would raise (Sec. 195 ante.) 

(a) All questions affecting validity of contract. 

(b) Adequacy of consideration, fairness, etc. 

(c) All questions as to want of performance by either party. 

(d) As to mutuality and equities of contract. 

2. All defenses by new matter, including Sees. 203, 204 ante. 

(a) Rescission or other release or modification of contract. 153 
Cal. 300. 

(b) Laches or statute of limitations. 158 Cal. 290; 156 Cal. 643 ; 
18 Cal. App. 107. 

(c) Want of title, or impossibility of performance in whole or 
part. 

(d) Any mistake, fraud, undue influence, misapprehension, sur- 
prise, etc., which would prevent contract from being en- 
forced. 20 Enc. PI. and Pr. 467. 



602. The counter-claims or cross-complaints available to defendant are : 
(Sees. 213,-225 ante.) 

1. To reform some error or mistake in contract. Sec. S^Z ante. 

2. To enforce rescission thereof or cancellation for fraud or other 
grounds. 153 Cal. 300; Sec. 553 ante. 

3. To quiet title as against contract or ejectment to recover posses- 
sion. 10 Cal. App.^'53 ; Sees. 812, 827 post. 



603. The judgment entered in the action may be framed to award appropriate 
relief: (Sec. 529 ante.) 
1. Require defendant to perform act as agreed in contract, or 

181 



2. If ini])c)ssil)k' in i)art, may require performance in ijart and give 
damai;es for remainder. 161 Cal. 42- 

3. If im])ossil)le in whole, award plaintiff full damai^es. 149 Cal. 122. 

4. If defendant refuses to perform after judf.(ment. (Sec. 426 ante.) 

(a) Enforced by contempt pr()ceedin<i^s, imprisonment, etc., or 

(b) Commissioner may be api)ointed to convey property or per- 
form act. 3 Pom. Eq. Jur. 1410. May allow interest. 18 Cal. 
App. 482; 20 Enc. PI. and Prac. 478. 



Mandamus to enforce performance of legal duty. 

604. Mandamus is a writ issued to any inferior tribunal, corporation, board 
or person, 

1. To compel i)erformance of an act specially enjoined by law as a 
duty resultiuf^ from an office, trust or station. 

2. To compel admission of a party to use and enjoyment of a ric^ht or 
office to which he is entitled bv law, and from which he is unlaw- 
fullv precluded. 164 Cal. 497; 153 Cal. 711; 26 Cyc. 139; C.C.P. 
1085; 13 Enc. PI. and Prac. 487. 

Would not compel a void act. 164 Cal. 41. 

May not be used to try title to office between rival claimants, 
but title to office mav be incidentallv determined. 160 Cal. 197; 
151 Cal. 711; 118 Cal. '481. 



605, The writ may be issued by Supreme, District x\ppeal, or Superior Court, 
but not by Justice or Police Courts: 

1. By Supreme Court — to any Court, official or other person. 

2. By District Court of Appeal — to any Superior, Justice or Police 
Court or official or other person. 167 Cal. 727. 

3. By Superior Court — to any Justice of Police Court, official or 
other person. 167 Cal. 792;^ Sees. 49-51 ante. C.C.P. 1085. 



606. The writ will issue to any inferior Court or Judge thereof to perform 
duties imposed by law^ in all actions or proceedings properly pending 
before it, except 

1. May compel Court to act, but not in anv particular manner — can- 
not control discretion. 162 Cal. 611 ; 160'Cal. 334, 372 ; 156 Cal. 483. 

2. Cannot correct errors or review decisions as to errors. 165 Cal. 
543 ; 163 Cal. 701 ; 159 Cal. 474; 26 Cyc. 188. 

May compel amendment judgment as to clerical errors. 162 Cal. 

343. 

To compel settlement of statement. 158 Cal. 699. 



607. The writ may also be issued to any State, County or City official, or 
the Board of any public corporation, as County, City, or any State 
Commissions to perform official duties; but not to control discretion. 
150 Cal. 123; 153 Cal. 711 ; 149 Cal. 516; 154 Cal. 179. 
Against officers to approve claim. 166 Cal. 94. 
Compel registration. 165 Cal. 776. 
To file nomination papers. 166 Cal. 198. 

Against auditor to draw warrants for salaries. 164 Cal. 321 ; 162 Cal. 
611 ; 160 Cal. 197; 26 Cyc. 227-249. 

182 



To file articles incorporation. 163 Cal. 19; Uo Cal. 105, 276, 587. 

State Hoard Equalization to assess railroad. 165 Cal. 560. 

City Trustees to pass ordinance. 165 Cal. 695. 

Railroad Commission on wrongful refusal to act. 167 Cal. 163. 

State School Superintendent. 163 Cal. 346. 

To compel Rec. Dist. to accept warrants as i)ayment of assessment. 

162 Cal. 401. 



608. The writ may also issue to any private corporation, or its board and 
officers to perform duties enjoined by law. For example : 

1. For stockholder to examine books. 135 Cal. 624. 

2. Reinstate member of unincori)orated association expelled with- 
out notice. 113 Cal. 377. 

3. Corporation to perform duties— 68 Cal. 359 ; 84 Pac. 342, 1002. 
Not to transfer stock— 166 Cal. 284; 164 Cal. 497; 156 Cal. 27; 14 
Cal. App. 674; 10 Cal. App. 534; 26 Cyc. 338. 

497 ; 154 Cal. 179 ; 26 Cyc. 395, 409. 



609. ^Vrit will not issue in favor of against individuals to enforce duties or 
rights arising from contracts, nor duties imposed by law in nature of 
obligation arising from personal relations. 24 Cyc. 386; 3 Cal. App. 255; 
13 L.N.S. 1084; 28 Cal. App. 513. 



610. The following are instances where writ was used to compel the ad- 
mission of a party to use and enjoyment of a right or office to which 
he was legally entitled. 

1. A teacher to be admitted into a school. 82 Cal. 483. 

2. An attorney illegally disbarred. 1 Cal. 190; 26 Cyc. 260. 



611. The writ will not be issued in any case 

1. When there is a plain speedy and adecjuate remedy at law. 

2. When it works a hardship, injustice or oppression. C.C.P. 1086; 
20 Cal. App. 404; 11 Cal. App. 207; 152 Cal. 1; 26 Cvc. 168; 128 
Cal. 369. 



612. The writ is issued upon application of "party beneficially interested" 
and against the tribunal, board, officer or person owing the duty. C.C.P. 
1086. Action is transitory. 154 Cal. n':^: 149 Cal. 94; 8 Cal. App. 480, 



613. The writ is either alternative or peremptory. 

1. Alternative — directs defendant to perform act or show cause at 
fixed time and place why he should not perform it. 

(a) Issued on filing petition without notice. 

2. Peremptory — directs defendant to perform the act. 

fa) Issued after hearing matter upon notice or upon return of 
alternative writ. 

3. Proceedings to obtain are "Special Proceedings" regulated by 
statute, but is a prerogative or extraordinarv remedy known un- 
der old system of law. C.C.P. 1087, 1088; 117 Cal. 5; 141 Cal. 98. 

18S 



614. The writ may l)e obtained by filing a \erified petition, in nature and 
substance same as a verified complaint in an action, containing: 

1. Title Court, cause and names parties — petitioner ])eing plaintifif 
and party against whom directed the defendant. 

2. Facts showing the ofiice, trust or station held by defendant. 

3. Facts showing the particular duty enjoined upon defendant by 
law in such office, etc. 150 Cal. 131 ; 2 Cal. App. 404. 

4. Facts showing the right of plaintiff to the performance of such 
duty bv defendant. 148 Cal. 55, 755; 8 Cal. App. 480; 9 Cal. App. 
549'; 71 Cal. 45. 

5. Facts showing injury to plaintiff by defendant's failure to per- 
form the duty. 

6. That plaintiff demanded performance and defendant has refused 
to perform. C.C.P. 1086; 84 Cal. 548; 139 Cal. 398; 138 Cal. 67. 

7. That plaintiff has no plain, speedy, or adequate remedy at law. 

8. Prayer for writ to issue — signed by petitioner or his attorney. 

9. Verified as a complaint. Sec. 147 ante ; 26 Cyc. 425. 

r 

615. The petition is filed with Clerk as any complaint, and then either 

1. Serve on defendant w'ith copy petition, a notice stating 

(a) Title Court and cause same as in petition. 

(b) That at time and place therein stated motion Avill be made 
for writ as prayed for in petition and on grounds therein 
stated. 

(c) Served at least 10 days before date hearing fixed ; or 

2. Obtain from Judge of Court alternative writ. 

fa) Serve it with copy petition on defendant. 

3. Either notice or alternative writ is served as a summons. Sec. 
155 ante ; 26 Cyc. 470; 87 Cal. 369. 



616. On or before date fixed in notice or alternative writ, defendant may 
serve and file a demurrer to petition, or answer, or both. 

1. Demur on same grounds as to complaint. Sec. 181 ante. 

2. Answer in form and substance same as to a complaint. 

(a) Any defenses by denial of allegations of petition. Sec. 189 
ante. 

(b) Any defenses by new matter, such as (Sees. 203, 204 ante) 

1. Laches, or delay in filing petition. 149 Cal. 516; 2 
Cal. App. 418. 

2. Anything which would defeat application not admis- 
sible under denials. 

3. No counter-claim or cross-complaint can be presented. Sees. 213, 
225 ante; 26 Cvc. 447, 463; C.C.P. 1089, 1090, 1109; 67 Cal. 120; 
56 Cal. 436. 



617. The matter is then tried on date fixed or to which continued, as any 
action. 

1. Questions of law are tried by the Court. Sec. 357 ante. 

2. Issues of fact by the Court, or submitted to jury or referred to 
referee in discretion of Court. 3 Cal. App. 248 ; Sec. 383, 385 ante. 

(a) Evidence may be introduced as in an action. 

3. If petition is denied, order of dismissal is entered. 

4. If petition granted, peremptory is issued on order of Court. 26 
Cyc. 476-499. 

184 



618. Petitions for writs directed to Justice, or Police Court, or public boards, 
officers or individuals, or corporations, should be filed in Superior 
Courts. 

1. If s^ranted or denied, api)eal may be taken to Higher Court as in 
actions. 167 Cal. 792. 

2. Petitions may be presented in first instance direct to Higher 
Court. 

(a) Reason being stated in petition why not presented to Su- 
perior Court. 

3. Must be presented to Higher Court when directed to Suj^erior 
Court. 166 Cal. 491 ; Supreme Court Rule XXVI ; 77 Cal. 34. 



185 



LECTURE 43. 

Trusts — Accounting. 

621. A Trust is a relation of contidencc wherein one or more persons called 
Trustees hold property or contract rii^hts for the use or benefit of one 
or more other persons called beneficiaries. 

1. Express Trusts — specifically declared 1»\- deed, declaration, will 
or other express contracts. 

(a.) Active — when duties are t(j be jjerformed l>y trustee. 
(1)) Passive — merely to hold — no duties to be j).erformed. 

(c) Charitable or Public — for benefit of some public, charitable 
purpose. 166 Cal. 286: 167 Cal. 212; 155 Cal. 727. 

(d) Private — for benefit of private persons. 

(e) Precatory — created b}' words of entreaty, request or recom- 
mendation — usually in wills. 167 Cal. 176. 

(f) Spendthrift — providinq- an income for maintenance of some 
dependent person. 

2. Im])lied or Resulting" — implied by law from relation or acts of 
parties 

(a) Differ from Express, only in manner of creating and proving. 

3. Constructi^•e — imposed by law from fraud or other wrongful act of 
trustee. 

4. A Trust to take effect on death, is testamentarv and in\alid. 168 
Cal. 444; 39 Cvc. 17-33. 



622. The varying relation of parties in a trust, give rise to a \ariety of 
actions and proceedings affecting the trust, to accomplish different 
results. 

1. Actions affecting express trusts. 

(a) Removal and appointment of trustee. 

(b) Preservation of property of trust. 

(c) To enforce execution or performance by Trustee. 

(d) Accounting and settlement of trusts. 

(e) To determine rights of parties in trust. 

2. Actions to establish implied or constructive trusts, and recover 
property. 



Action to Remove Trustee. 

623. An action may be brought by any beneficiary in a Superior Court to 
remove a trustee on the following grounds : 

1. That he has violated the terms of trust. 

3. Trustee is defendant, but all beneficiaries should be made parties, 
though one may sue for all. Sees. 95, 111 ante. 

4. Action is equitable, and transitory as to venue and in i)ersonam. 

2. That he is unfit to execute the trust. 

C.C. 2282, 2283 ; Sec. 527, 530, 62, 65 ante ; 64 Cal. 345 ; 22 Enc. PI. 
and Prac. 37, 40, 43; 39 Cyc. 261-269; 111 Cal. 628; 10 Cal. 588; 
70 Cal. 334. 



624. The action is brought and prosecuted as any action and complaint 
should allege : 
1. Facts showing creation and existence of trust, its terms and ju'o- 
visions. 

186 



2. Facts showing- defendant's ap])i lintnient as trustee, his acceptance 
and entering upon trnst. 

3. The interest of jilaintiFf and other beneficiaries therein. 

4. Facts showing defen(hint trustee's vic)lation of trust or unfitness 
to execute it. 

(a.) Charges against him must be specific and certain. 

5. Injury to plaintifif resulting from acts, and plaintiff has no ade- 
quate' remedy at law. Sec. 528 ante; 22 Enc. PI. & Prac. 40, 48. 



625. The i)rovisional Remedies of Injunction and Receiver ma\' l^e employed 
under var^■ing circumstances in aid of such actions. Sees. 320. 331 ante. 



626. The defenses, counter-claims and cross-complaint a\ailable to defend- 
ant are 

1. An\- defense which may be made by denial. Sec. 195 ante. 

2. Any defense bv new matter which would defeat action, as Sees. 
203, 204 ante. 

(a) Termination of trnst and discharge of trustee. 

(b) Estoppel, laches or statute limitations. 

(c) Plaintiff no interest or right or capacity to sue. 

3. Counter-claim or cross-complaint may be made. . Sees. 213, 225 
ante. 

(a) For compensation or expenses, or accounting. 



627. Action may l)e tried by Court, and reference may be made for account- 
ing. 

1. Judgment may remove trustee, and appoint another to act. 

2. Make an accounting and settlement of acts of trustee removed. 
Sees. 385. 369. 371 ante. 



Action to Appoint Trustee to fill Vacancy. 

628. An action may be maintained in Superior Court l)y any beneficiary to 
appoint a trustee when 

1. A trust exists without any appointed trustee, or 

2. Where all trustees renounce, die, discharged by Court or resigned, 
and 

3. The declaration of trust provides no i)racticable method of ap- 
pointment. 

4. Beneficiary 14 years of age ma}' nominate, but his appointment 
w'ithin discretion of Court. C.C. 2287. 

5. All beneficiaries should be made parties. Sec. 95 ante; 158 Cal. 
390; 22 Enc. PI. and Pr. 24; 39 Cvc. 271-290; C.C. 2287-2289; 
149 Cal. 214; 133 Cal. 645 ; 91 Cal. 191 ; 90 Cal. 25; 135 Cal. 107. 



629. The complaint or petition is filed and served as in actions and should 
contain, 

1. Facts showing existence of trust, its terms and provisions. 

2. The interest of plaintifi: and all other persons therein. 

3. Facts showing a vacancy in ol^ce of trustee, cause thereof, and 
necessity of appointment. 

187 



4. That declaration of trust ])r(ni(lcs no practicable method of ap- 
pointment. 

5. Name of trnstee nominated by beneficiary, if any. 22 Enc. PI. 
and I'r. 31 ; 39 Cvc. 289. 



630. The defending or opposing beneficiaries may defend action by answer 
alleging: 

1. Denials of matters alleged in complaint or petition. Sec. 195 ante. 

2. Any new matter showing termination of trust or no necessity for 
its continuance. Sees. 203, 204 ante. 

3. May file cross-complaint to settle and terminate trust, and divide 
anions: beneficiaries. Sec. 225 ante. 



631. The Provisional Remedies. Injunction and Receiver are available in 
such actions when necessary to preserve property until appointment of 
new trustee or settlement of trust if terminated. Sees. 320, 331 ante. 



632. The action being equitable, it is tried by Court who appoints new 
trustee b.y judgment, or in case of termination may make reference for 
accounting or appoint Referee to make partition. Sec. 371 ante. 



Preservation of Property of Trust. 

633. The trustee having the legal title, any ordinary action may be main- 
tained by or against trustees to recover, protect or preserve property 
belonging to the trust, by or against third persons. 

1. Such actions are same character and subject same rules as any 
action. 

2. Trustee's cjualifications not alleged — he sues or is sued as any 
owner of title. 

3. Beneficiaries not necessary parties, but proper parties to be joined. 

4. Beneficiary cannot bring action against third persons, except 
when trustee after demand refuses. 

(a) In such case, trustee must be made a party defendant. 149 
Cal. 1 : Sec. 94 ante; 22 Enc. PI. and Prac. 152-192; 39 Cyc. 
446; 114 Cal. 378; 7Z Cal. 415; 119 Cal. 494; 87 Cal. 245; 154 
Cal. 108. 



634. A contract made in name of one expressly for benefit of other may be 
enforced by any appropriate action, either 

1. By party in whose name made — the trustee, or 

2. By beneficiary — party for whose benefit expressly made 

(a) In such case, without any demand or refusal bv Trustee. 
C.C. 1559; Sec. 94(5), 83(4b) ante.; 22 Enc. PI. 'and Prac. 
171 ; 142 Cal. 702; 164 Cal. 355. 



635. Actions may be maintained to compel restoration to trust fund any 
property diverted by a trustee or beneficiary or disposed of through 
fraud or any act in violation of trust. 

188 



1. By one trustee against a co-trustee, or l^eneficiary. 

(a) Any approi)riate action at law or equity to recover property. 

2. By a beneficiary against a trustee. 

3. By a beneficiary against a beneficiary after demand on trustee to 
sue and his refusal. 

(a) Any appropriate action in ecpiity to restore property. 

(b) Or for an accounting and restoration. 

4. Such actions are same in character and governed by same rules 
as elsewhere explained. 39 Cyc. 522; 134 Cal. 641. 

To enforce Execution or Performance of Trust. 



636. An action may be maintained by a beneficiary against trustee to compel 
him to execute and perform an express trust in accordance with its 
terms. 

1. Payment of money or delivery of property due to beneficiary may 
be enforced. 

(a) By any appropriate action — assumpsit, money had and re- 
ceived, or when title is conveved — ejectment, replevin, etc. 
149 Cal. 24. 

2. Performance of any other acts, by action in equity for that pur- 
pose. 

fa) For Injunction to restrain breach or violation of trust. 

(b) In nature specific performance, to compel performance of 
specific terms of trust. 39 Cyc. 509-569 ; 85 Cal. 507 ; 111 Cal. 
628;C.C. 863. 



637. Such action is equitable in character, brought in Superior Court only. 
Transitory as to venue, and in personam, except when brought to 
recover specific property, it may be local and in rem. 39 Cyc. 594: 66 
Cal. 27. 



638. Necessary allegations to state a cause of action to enforce terms of 
trust are 

1. Execution of trust, its terms and provisions — alleging copy of 
writing. 

2. Facts showing situation of trust, and persons beneficiaries and 
their interests. 56 Cal. 257. 

3. Facts showing defendant Trustee's acceptance of trust. 

4. Facts showing trustee's failure to execute or perform terms of 
trust. 

(a) Specifying particular terms or acts failed to perform. 

5. Showing demand upon trustee and his refusal or failure. 

6. Facts showing injury to plaintiff by such failure. 

7. Ofifer to do equity bv paving expenses, compensation or other 
burdens. 158 Cal. 175", 474'; 39 Cvc. 570. 



639. The Provisional Remedies available are Injunction, or Receiver, wdien 
necessary to preserve propertv until judgment of Court. Sees. 320, 
331 ante; 39 Cyc. 574. 

189 



640. Defendant may interpose any defense or connter-claini a\ailat)le inider 
i^eneral rules — there 1)ein<^ nothing' specialh' apphiuL!,' thereto. Sees. 
193. 203, 204, 213, 223 ante.' 



To Determine Rights of Beneficiaries in Trust. 

641. Tlie legal title of trust ])roperty being vested in trustee, a beneficiary 
cannot maintain an action, either 

1. To quiet title to the ])roperty in the l)eneficiar_\-, nor 

2. In ejectment to recover possession of ])ropert\-. Sec. 93 ante; 84 
Cal. 436 ; 92 Cal. 9 ; 138 Cal. 369. 



642. Actions however may be maintained to determine rights in a trust. 

1. J)y trustee to establish trust and determine rights of beneficiaries 
therein. 

2. By beneficiary to quiet his title to ecpiitable interest against ad- 
verse claimants thereto. 

3. By beneficiary to determine rights of all beneficiaries therein. 

4. By beneficiarv to establish a trust and compel trustee to convey 
and deliver propertv to him. C.C. 833; 163 Cal. 717; 160 Cal. 98: 
20 Cal. App. 633; 149 Cal. 1; 22 Enc. PI. and Prac. 117; 120 Cal. 
474; 138 Cal. 364. 



643. Actions by trustee or beneficiary to determine rights of all beneficiaries 
in a trust are equitable, somewhat like actions to quiet title as hereafter 
explained, and all parties claiming an interest should be made parties 
and their claims alleged and presented in the pleadings, tried and deter- 
mined. 149Cal. 7;7bCal. 97. 



644. Actions by beneficiary to establish and declare a trust, and compel con- 
veyance and delivery of trust property, are equitable, in rem., and local 
or transitorv as to \enue according to character of nropertv involved. 
168 Cal. 700. 

1. All parties claiming" should be made plaintiffs, or defendant if one 
reftises to join. 

2. Trustee and all parties claiming adversely should l^e defendants. 

3. Plaintifif may trace property in hands of any party so long as it 
may be identified. 

(a) Except in hands of bona fide purchaser for value without 
notice. 154 Cal. 323. 

(b) Alav recover damages when propertv in specie cannot be 
trac'ed or identified. 138 Cal. 474; 117 Cal. 313. 



645. In actions involving express trusts repudiated, complaint should show: 

1. Execution of trust, its terms, conditions, and property involved. 

2. Rights of plaintilT and all other parties therein made defendants. 

3. Facts showing repudiation of trust by trustee and diversion of 
property therefrom. 

4. Demand on trustee for property and accounting and his refusal. 

5. That plaintifif entitled to delivery of property under terms of trust. 

6. Ofifer to do equity by paying all proper charges, expenses, etc. 
8 Cal. App. 397 ; 158 Cal. 474; 18 Cal. App. 41. 

190 



646. In actions invoKinj;- resulting trusts, complaint should show 

1. Acquisition by and transfer to defendant i)roperty involved, de- 
scribing it. 

2. Facts showing ])aynient of consideration for property l)y plaintifT. 

(a) Or any other facts establishing inii)licd trust in favr)r of 
plaintiff. 

3. Demand upon defendant for property and his refusal. 

4. Offer to do equity by paying proper charges, expenses, etc. 163 
Cal ^80- 12 Cal. \])p. 500: 148 Cal. 511 : 154 Cal. 520. 



647. In actions involving constructive trusts, complaint should show. 

1. Acquisition by and transfer to defendant property involved, de- 
scribing" it. 

2. Particular facts of fraud or other wrongful acts of defendant in 
acquiring propert}'. 

3. The plaintiff's right to or interest in property 

(a) Not sufficient to allege plaintiff is owner or entitled to \)xo\i- 
erty. 

(b) Must allege particular facts of source and character of title. 

4. The defendant's appropriation or conversion of property. 

5. No demand necessary — better to give and allege when convenient. 
163 Cal. 648, 717; 161 Cal. 61: 157 Cal. 583; 17 Cal. App. 14, 22; 
150 Cal. 477; 127 Cal. 245. 



648. The defenses, counter-claims and cross-complaints available to defend- 
ants in such actions. 

1. All defenses which may be made by denial. 

2. All defenses by new matter which would defeat action, as 

(a) Laches, limitations, estoppels, etc.. 163 Cal. 648; 19 Cal. 
App. 276. 

(b) Defendant bona fide purchaser for value and without notice. 

(c) Any equities existing aft'ecting matter. 

3. No counter-claim or cross-complaint necessary — all rights can be 
plead in answer. 



Accounting. 

649. An accounting may be had in some actions at law and other proceedings. 

1. An action on account for money due. or had and received, and 
judgment therefor. 

(a) In which itemized account may be demanded by defendant. 
(b ) Accounting is had to determine amount due. 
(c) All such actions are legal in character, merely for money 
judgment. Sec. 136 ante. 

2. Executors, administrators, guardians, receivers may be compelled 
to account in court and proceedings wherein thev are appointed. 
159 Cal. 420. 



650. In addition thereto, an action may be maintained in equity to compel an 
accounting. 
1. In ail dealings v\-here one acts in a representative or trust capacity 
for another. 

191 



(a) Between 'J'rustee and l^eneficiarv — deceased execntor. 163 

Cal. 681; 154 Cal. 759. 
(h) Princii)al and ai.',cnt. of exery character. 
(c) In all joint \entures when one acts for others. 

2. In an\' relation where a discovery is necessary to an accounting. 

3. In all cases where rights of i)arties must be determined as basis to 
accounting. 

(a) Dissolution i)artnershii)s, corporations, etc. 159 Cal. 448; 
13 Cal. App. 720. 

(b) Among- co-tenants or owners, etc. 168 Cal. 369; Pom. Rem. 
275, 42; 164 Cal. 287; 163 Cal. 427; 160 Cal. 601 ; 22 Enc. PI. 
and Prac. 90; 159 Cal. 604; 158 Cal. 474; 18 Cal. App. 655; 
81 Cal. 328 ; 39 Cvc. 464. 



651. Such actions are equitable, brought only in Superior Court, transitory 
as to venue and in personam, and necessary parties are 

1. Plaintiff — one or more parties beneficially interested and entitled 
to accounting. 145 Cal. 344. 

2. Defendant — party from whom accounting is due, — his executor, 
administrator, etc. 

(a) Other beneficiarv should be joined, if refused to join plaintiff. 
Pom. Rem. 171, '275; 88 Cal. '^72\ 18 Cal. App. 655; 117 Cal. 
547 ; Sees. 527, 62, 65 ante. 



652. Necessary allegations to state cause of action for accounting are 

1. Facts showing relation of plaintiff and defendant. 

2. Dealings between parties wherein defendant received property in 
which plaintiff has an interest and showing duty of defendant to 
account. 

(a) If between partners, show dissolution or right to dissolution 
of partnership. 

3. Facts showing money or property due from defendant to plaintiff* 
and right to discovery as to amount. 

fa) Except such allegation not necessary in actions against 
partners or trustees. 

4. Facts showing no accounting or settlement has been had between 
parties. 

5. Demand on defendant and his refusal or failure to account. 164 
Cal. 287; 163 Cal. 639, 681 ; 160 Cal. 601 ; 158 Cal. 474; 39 Cyc. 474; 
20 Cal. App. 424. 



653. In such actions, the Provisional Remedies of Injunction and Receiver 
are available when necessary to aid action or preserve property until 
judgment. 18 Cal. App. 655 ;^13 Cal. App. 720; Sees. 320, 331 ante. 



654. The defenses, counter-claims and cross-complaints available to defend- 
ant are 
1. If right to accounting is disputed. 

(a) Deny rights of plaintiff, relation or dealings of parties, or 
receipt of property, etc. 

(b) Plead new matter, showing anything defeating action, as 

1. Laches, limitations, estoppel, conveyance, etc. 

192 



2. Accounting or settlement theretofore made, or any 
release. 
If right to accounting be admitted, 

(a) Answer should allege the account between parties. 

(b) Show receipts, claims for disbursements, expenses, charges 
and rights of parties. 

(c) No counter-claim or cross-com])laint is necessary. Sees. 
195, 203, 204, 229 ante ; 39 Cvc. 475. 



655. Action is tried by the Court or referred to referee to state the account. 

1. Court first tries and determines right to account, and rights of 
parties. 

2. If adverse to plaintiff, judgment entered accordingly without 
accounting. 

3. If in favor of plaintiff", or right to accounting admitted. 

(a) Then account taken by Court, or reference made. Sees. 
369, 371 ante. 

4. Findings determine state of account and amounts due to either 
party. 

5. Judgment in favor of either partv according to findings. 164 Cal. 
289 ; 59 Cal. 448 ; 158 Cal. 474. 



Creditor's Bill. 

656. This is an action by a creditor to recover and subject the property of his 
debtor in satisfaction of his claims, when the same cannot be enforced 
by the ordinary remedies at law. Ordinarily 

1. To set aside fraudulent conveyances by debtor of his property 
real or personal to third persons to hinder and impede its seizure 
by legal process. 113 Cal. 429; 168 Cal. 32. 

2. To discover assets and subject it to satisfaction of claims bv legal 
process. 149 Cal. 793 ; 6 Enc. PI. and Prac. 728. 

3. To marshall the debtor's assets and applv them pro rata to several 
creditors' claims. 95 Cal. 130; 153 Cal. 183 ; 127 Cal. 84. 

4. To enforce claims against corporations on its stockholders and 
reach assets of corporations. 5 Enc. PI. and Prac. 388; 95 Cal. 
581, 130; 6 Stand. Proc. 164. 



657. Under the Code, certain proceedings are substituted for creditor's bill : 

1. Supplementary proceedings are substituted in some cases. Sec. 
432 ante. 

(a) Not when third person denies his debt or claims property. 

(b) Not in case of fraudulent conveyances. 99 Cal. 271 : 109 Cal. 
668; 113 Cal. 431 ; 144 Cal. 483; 153 Cal. 146. 

2. Such proceedings and the right to examine party substituted for 
bill of discoverv to some extent. Sec. 351 ante; 139 Cal. 469; 6 
Enc. PI. and Prac. IZd. 



658. Under Code, these conditions precedent must exist before creditor can 
maintain such action. 
1. Creditor must reduce his claim to judgment by action at law. 

(a) Except when debtor is a non-resident of State and personal 
service cannot be had. 

193 



(b) Allowance of claim bv Executor or Adjiiinistrator equal to 
judgment. 99 Cal. 271 ; 166 Cal. 546. 

2. Supplementary proceedings be exhausted or unavailing. 

3. Execution issued and returned unsatisfied — nulla bona. 

4. No available legal remedy or process to enforce judgment. 99 Cal. 
271 ; 166 Cal. 546; 165 Ca'l. 762. 



659. This action has the following characteristics: 

1. Action in Ecjuity brought only in Su])erior Court. 

(a) Except in Justice Court to recover debt due from or ])ers(jnal 
property in hands of third person, \alue less than $300.00. 

2. To set aside fraudulent conveyance. 

(a) In rem and local as to venue. 

(h) Jurisdiction acquired by personal or constructive service. 

3. In other cases, In personam, Transitory and jurisdiction only by 
personal service. 164 Cal. 265 ; 120 Cal. 464. 



660. The necessary parties are 

1. Plaintiff — the creditor, or his assignee, executor, administrator. 

(a) One creditor jnay sue in behalf of all when numerous. Sec. 
Ill ante. 

2. Defendants — the debtor and his fraudulent grantees, or parties 
owing debt to debtor or having possession of his property — their 
assigns, executor, etc. 109 Cal. 662. 



661. These are the proper proceedings, and facts necessary to allege under 
the varying circumstances : 
First : In case debtor's property unknown, and discovery desired, 

1. Bring action on claim, against debtor. 

(a) Allege usual facts as in ordinary action — making personal 
service. 

2. Examine debtor by depositions before judgment if desired. 

3. After obtaining judgment, issue execution. 

4. Examine debtor under supplementary proceedings as to prop- 
erty. 

5. If any found. Court may order it applied on execution. Sees. 
433, 351 ante. 

Second: In case third party owes debtor a debt or has personal prop- 
erty in his possession, 

1. Bring action against debtor on claim. 

(a) Allege usual facts as in ordinary action and make personal 
service. 

(b) Attach debt or property — in which case constructive ser- 
vice may be had. 

2. Obtain judgment, issue execution and garnishee third party on 
debt or property. 

3. Examine third party under sup])lementary proceedings. 

(a) If he denies debt or claims property — get order to sue 
third party. Sec. 434 ante. 

4. Bring action against third party — alleging facts showing 

(a) Claim against debtor, and judgment obtained thereon. 

(b) Defendant's debt to debtor, showing what it is for and 
amount. 

194 



(c) Attaclinient of same, issuance and le\y of execution. 

(d) Defendant's refusal to pay or deli\er ])roperty under sup- 
plementary proceedings. 

(e) If successful, judgment will be for debt due or delivery 
property on execution. 99 Cal. 271 ; 116 Cal. 370; 144 Cal. 
4,S3: 153 Cal. 146; 155 Cal. 206. 

Third: In case debtor has transferred property to third person to 
defraud creditor. 

1. If debtor resident, bring action against debtor on claim 

(a) Allege usual facts as in ordinary actions — making personal 
service. 

(b) May attach jn-operty before judgment. 

(c) After judgment, issue and levy execution on property; 
and then 

(d) Either sell property under execution, and after getting 
title sue third party to set aside sale and quiet title to 
real estate or replevin personal property. 

(e) Or before sale, bring action against third party to set 
aside sale, and then levy on same by execution and sell 
property. 

2. If debtor non-resident, bring one action against debtor on claim 
and third party to set aside conveyance. 

(a) Attach property as belonging to debtor and make con- 
structive service. 

3. In first case must allege the judgment, in second, the claim in 
usual manner. 

4. In both cases, allege facts showing fraud in the conveyance as 
to plaintiff. 102 Cal. 1. " 

5. That debtor has no other property out of which claim may be 
satisfied. 

(a) Shown in first case by issuance and return of execution 
not satisfied. 

6. Judgment can set aside sale only so far as necessary to satisfy 
plaintiff's claim. 109 Cal. 662; 113 Cal. 429; 115 Cal. 266; 144 
Cal. 487; 164 Cal. 265; 165 Cal. 762; 166 Cal. 546; 167 Cal. 90, 
365 ; 168 Cal. 32 ; 120 Cal. 463. 



662. Creditors have various remedies against stockholders or directors to 
enforce their claims against corporations. 
First: Against stockholders on their liability for corporation debts. 
In which allege : 

1. Facts showing debt against corporation in usual manner. 107 
Cal. 629. 

(a) Allege when and how debt arose — whole amount thereof. 

2. Whole number of shares then issued and outstanding. 112 
Cal. 677. 

3. Names of all stockholders and number shares held by each at 
time debt incurred. 

(a) Showing proportion of debt for which each is liable. 87 
Cal. 33 ;^ 108 Cal. 1 ; 115 Cal. 380. 

4. Attachment may be levied on stockholders' property. 97 Cal. 93. 

5. Corporation may or may not be made a party defendant. 

6. Judgment against each stockholder severallv — not jointly. 99 
Cal. 615; 108 Cal. 1; 136 Cal. 510; 140 Cal.'l03; 147 Cal. 571; 
160 Cal. 90 ; 154 Cal. 778 ; 125 Cal. 407 ; 160 Cal. 577 ; 166 Cal. 346. 

195 



Second: .Vi^ainst stockholders to recover l)alance unpaid on subscrip- 
scriptions to stock. 

1. Bring' action against corporation on claim. 

(a) Allege facts of claim in usual manner. 

(b) Obtain judgment against corporation. 

(c) Have execution issued and returned unsatisfied. 

2. Then bring acticni against stockholders who have not paid sub- 
scriptions. 

(a) Allege facts of o1)taining judgment against corporation. 

(b) That execution was issued and returned unsatisfied. 

(c) Number shares owned by each stockholder and amount 
unpaid subscription due and unpaid from each. 

(d) Corporation should be made party defendant. 

(e) Several stockholders may be sued but judgment is against 
them severally, for a sum sufficient to satisfy plaintiff's 
claim. 95 Caf. 578, 581 ; 104 Cal. 3; 126 Cal. 582; 127 Cal. 
72; 150 Cal. 768; 155 Cal. 765; 62 Cal. 448; 23 Cal. App. 
274; 145 Cal. 700. 

Third : Against directors for assets illegally distributed or paid out, 
or funds misappropriated by them or any ofificers or agents. 

1. Bring action against directors — making corporation defendant. 

2. Allege facts of claim or debt against corporation in usual way. 

(a) Judgment need not be first obtained against corporation. 

(b) But if one, allege it. 

3. Allege facts showing assets illegally distributed, or funds mis- 
appropriated. 

(a) Show particularly amount, how illegal or misappropriated 
and by whom. 

4. Ji-idgment may be against directors jointly or severally. Con. 
ArtrXII, Sec.^3; C.C. Sec. 309; 108 Cal. 369; 122 Cal. 522; 136 
C^l. 432; 5 Cal. App. 702 ; 21 Cal. App. 439; 17 Cal. App. 753 ; 23 
Cal. App. 465 ; 147 Cal. 633. 



196 



LECTURE 44. 

Enforcement of Liens — Redemption — Subrogation — Contribution. 

665. A lien is a charge imposed upon specific property by contract of parties 
(other than transfer in trust) or by operation of law, as security for 
performance of an act. 
Various kinds too numerous to specify but may be generally classified 

1. By contract — as mortgages, pledges, or other contracts. 

(a) Deed of Trust to secure a debt not a lien. 149 Cal. 316. 

(b) Vendors or conditional contracts of sale not a lien, — title 
is retained in trust to secure payment. 

2. Implied or granted by law from relation of parties — as vendor's 
or seller's lien, banker's, mechanic's, workman's, and other liens 
of such character. 156 Cal. 559; 154 Cal. 265. 

3. Liens created by law against property — taxes, street improve- 
ments, attachments, judgments, and other Court proceedings. C.C. 
2872; C.C. P. 1180. 



666. Many liens and other instruments may be enforced without action in 
Court. 

1. Deeds of Trust, mortgages and other contracts containing power 
of sale. 158 Cal. 390; 19 Cal. App. 511 ; 12 Cal. App. 30; 149 Cal. 
108 ; 7 Cal. App. 379, 413 ; 151 Cal. 606 ; 149 Cal. 316. 

(a) Bv pursuing methods therein provided. 7 Cal. App. 413; 
150Cal. 214^;95Cal. 435. 

2. Pledge, bv sale on notice as provided in statute. 161 Cal. 710; / 
C.C.^3005:: 

3. Liens dependent on possession, sale in same manner as pledge. 
C.C. 3052. 

4. Chattel mortgage, holder mav recover possession propertv and 
then sell as pledge. 6 Cal. App. 455; C.C. 2967; 117 Cal. 412; 128 
Cal. 489. 

5. Statutorv liens, in manner provided therefor in statute creating. 
C.C. 3052. 3061. 3063, 3065 : 27 Cyc. 1449; 31 Cyc. 871 ; 7 Cyc. 105; 
5 Stand. Proc. 69. 



667. An action may be maintained on deed trust securing debt, and on any 
lien created by contract or law to foreclose same by judgment declaring 
amount due, existence of lien, and ordering sale of property covered by 
it to satisfy same. 

1. Action is in lieu of other proceedings. 6 Cal. App. 455. 

2. Both cannot be pursued at same time. 

3. Deed trust containing power sale ordinarilv should not be fore- 
closed. 158Cal. 390;l49 Cal. 316. 

(a) Trustee should be by action compelled to execute powers. 

4. But such deeds may be foreclosed vmder some circumstances. 14 
Cal. 256; 140 Cal. 73: 4 Cal. App. 131 ; 150 Cal. 214; 131 Cal. 187. 

668. Such action to foreclose is the only action which can be maintained on 
debt secured by mortgage on real or personal property under Code, 
without power sale. 

1. Action on debt so secured alone, waives the lien of mortgage. 
C.C.P. 726; 166Cal. 160. 

Does not prevent termination lease. 166 Cal. 170; 162 Cal. 181; 
6 Cal. App. 455 ; 1 16 Cal. 1 19 ; 123 Cal. 62. 

197 



669. Any action at law may he maintained to recoxer a debt secured Ijy any 
lien other than niortg^a.^e without foreclosinj^' Hen. or waiving it. 

1. If chiim not satisfied thereby, lien may then be enforced by action 
or other proceedings. 

2. Except liens created bv statute which create no ])ersonal obliga- 
tion. 140 Cal. 19 : 66 Cal. 97 ; 31 Cyc. 868 ; 98 Cal. 406. 



670. Actions to foreclose deed trust or liens are e(|uital)le actions brought 

in Superior Court, in rem, and local as to venue if on real property, 

otherwise transitory. 12 Cal. App. 579; 151 Cal. 313; Sees. 527, 63, 51 

ante. 

1. Except liens on personal propert\' ma}' l)e brought in justice 

Court when amount of lien and value property amounts to less 

than $300. Sec. 52 ante ; C.C.P. 76, 113 ; 15 Cal. App. 666: 151 Cal. 

313;27Cvc. 1511-1519; 9 Enc. PI. and Prac. 219,249. 



671. Such actions should I)e prosecuted by and against parties as follows: 
>- 1. Plaintiff — owner and holder of debt and lien, his assignee, succes- 
sor, executor or administrator. 153 Cal. 460: 9 Cal. App. 177; 148 
Cal. 669. 
(a) If debt and lien be held in name of diilerent parties, both 
be joined or owner of debt alone. 3 Cal. App. 583. 
2. Defendants — the debtor, or his executor or administrator. 

(a) All persons having any interest in property subject to lien at 
time lien attached. 149 Cal. 687, 1 : 152 Cal. 615. 
V' (b) All persons acquiring interest in such property subsequent 
and subject to lien. 9 Cal. App. 500; 3 Cal. App. 54. 
^ (c) Any subsequent grantee who assumed debt secured l)y the 
lien. 19 Cal. App. 797. 
(d) But not claimants to property prior and adverse to lien. 
1. Adverse partv submitting without objection bound by 
judgment. 166 Cal. 160 -^ Pom. Rem. 230-242, 279-281 ; 
147"Cal. 554; 53 Cal. 15; 131 Cal. 552: 167 Cal. 616; 
158 Cal. 690: 27 Cvc. 1562: 9 Enc. PI. and Prac. 266; 
129 Cal. 237. 



672. Necessary facts to state a cause of action for foreclosure of deed trust or 
any lien created by contract are 

1. Facts showing creation of obligation — if in writing allege as any 
contract, and showing debt due. 153 Cal. 460; 151 Cal. 553; Sec. 
542 ante. 

2. Facts showing creation of lien — alleging copy contract or effect 
as any contract. Sec. 542 ante. 

3. Amount of debt or oblio;ation remaining unpaid and secured by 
lien, and then payable. 

4. Amount of attorney fees desired, if contract provides therefor. 

5. Description of property subject to lien and desired to be sold. 

6. Claims of defendants to property need not be specifically alleged ; 
sufficient to allege 

(a) Defendants claim some interest in property which is subsie- 
quent and subordinate to lien. 156 Cal. 585; Vendors lien, 
156 Cal. 589 ; 27 Cyc. 1590: 5 Stand. Proc. 69 ; 9 Enc. PI. and 
Prac. 367. 

198 



673. Necessary facts to state a cause of action for foreclosure of lien created 
by law to secure debts arising by agreement of parties. 

1. Facts showing creation of debt — in same manner as any agree- 
ment. • 

(a) Furnishing material for and used on impro\-ement or care of 
property. ' 159 Cal. 742. 

(b) Performing labor in improving, re])airing or preserving 
proi)erty. 

(c) Doing an\- act on property from which debt arises. 

2. Facts showing relation and dealings of parties from which law 
creates lien. 

(a) Alleging ]-)erformance of all acts required by law to create 
lien. 

(b) Filing or giving proper notice to secure lien. 8 Cal. Apjj. 395. 

3. Description of property subject to lien. 

4. Allege amount of dcl)t unpaid secured by lien, and then payable. 

5. Allege interest of defendants in property as in actions on contract 
liens. 

6. If lien arises from labor or material furnished a contractor for use 
on property, 

(a) Allege sufficient amount due from owner to contractor to 
satisfy lien. 7 Cal. App. 703: 27 Cyc. 367-387; 25 Cyc. 684. 



674. Necessary allegations to state a cause of action to foreclose a statutory 
lien to secure an obligation imposed by law ; as street assessments, taxes, 
etc. Sec. 136 (4) ante. 

1. Facts showing performance of each and every act provided by law. 

(a) To create the obligation to pay money "for tax, or assessment, 
and that it is due. 

(b) To create a lien therefor on property. 

(c) Allege each particular act in order of performance. 

2. Description of property subject to lien. 

3. Amount of obligation unpaid and secured by lien. 165 Cal. 543; 
167 Cal. 185, 454; 156 Cal. 154: 148 Cal. 457:' 154 Cal. 265; 97 Cal. 
305 ; 116 Cal. 612; 28 Cyc. 1232. 



675, The Provisional Remedies available are Injunction to restrain waste, 
and Receiver to hold and preserve propertv in some cases. Sees. 320, 
331 ante ; 123 Cal. 500: 27 Cvc. 1621. 



676. Same defenses, counter-claims and cross-complaints are available as in 
any case, and there is nothing peculiar to these cases except, (Sees. 195 
203, 213, 225 ante.) 

1. No couunter-claim can be made on an independent contract or debt. 
151 Cal. 723. 

2. Subsequent lien claimants may foreclose their liens by cross- 
complaint in same action. 153 Cal. 460. 

3. No cross-complaint can be filed in actions on statutory liens last 
above mentioned. 163 Cal. 207 ; 161 Cal. 390 ; 158 Cal. 690 : 150 Cal. 
265; 2 Cal. App. 36; 168 Cal. 323: 27 Cvc. 1600; Enc. PI. and 
Prac. 391. 

199 



677. The action is tried by Court, no jury can be demanded, but reference 
may be made for certain purposes, and findiui^s and judgment should 
determine, 

1. Amownt of obbgation due and unpaid. 

2. Declare lien therefor on property described. 

3. Order lien foreclosed and pro]:)erty sold. 150 Cal. 214; 152 Cal. 443. 

4. Name Sheriff or Commissioner to make sale. 

5. Direct how proceeds of sale shall be a])plied. 

6. Foreclose equity of Redemption owned by defendants and those 
claiming under them. 

7. Order entry deficiency judgment in case contract debts. 

8. Twdgment does not affect title of person not party. 163 Cal. 24; 
150'Cal. 140; 152 Cal. 716; 27 Cvc. 1634; 9 Enc. PI. and Prac. 396, 
401 ; 149 Cal. 617. 



Redemption. 
678. The Codes provide methods of redeeming and discharging property from 
liens without suit, for example, 

1. From execution sales — within one year thereafter upon payment 
certain sums. 167 Cal. 459; C.C.P. 702, 703. 

2. From any other lien — at any time before right of redemption is 
foreclosed bv paying sum due and interest. C.C. 2903-2905 ; 101 
Cal. 545; 80 Cal. 355; 17 Cyc. 1324-1334. 



679. AMien debt and penalties have been paid in proper time, redemption and 
release of lien may be enforced. 

1. By appropriate action to recover property or quiet title thereto 
as in other cases. 143 Cal. 663. 

2. By action against offfcer, or lien holder to release and discharge 
lien. C.C. 2941. 



680. Owner of property subject to lien or deed trust to secure debt, cannot 
recover property or its possession without paying the debt. 

1. Because of defects in proceedings to enforce lien or sale. 

2. Because enforcement of lien or debt is barred by statute of limi- 
tations. 149 Cal. 617; 151 Cal. 778; 154 Cal. 513. 

3. His action is to redeem bv paving debt, and discharging lien or 
trust. But see 161 Cal. 285. 



681. An action to redeem property from a lien or sale may be maintained 
by the debtor, or any subsequent purchaser or lienor, in following cases : 

1. At any time after debt due and before redemption foreclosed or 
barred by limitations. 

2. After a sale foreclosing, for fraud, mistake or invalid sale. 127 
Cal. 532. 

3. Must be entire redemption — not in part. 149 Cal. 627 ; 164 Cal 
255; 152 Cal. 426; 3 Cal. App. 422; 122 Cal. 509; 17 Cyc. 1335; 27 
Cal. 258; 35 Cal. 404; 112 Cal. 581 ; 17 Enc. PI. and Pr. 944. 

200 



682. Action may be maintained by and against parties as follows : 

1. Plaintiff — debtor, or subsequent grantee, successor or lienor. 149 
Cal. 627. 

2. Defendant — creditor, and any person ha\ing any interest in prop- 
erty. 

(a) Claimant claiming adversely to both not proper party. C.C. 
2903-2905; Pom. Rem. 170, 284: 17 Cvc. 1336; 17 Enc. PI. 
and Pr. 947. 



683. The action is equital)le, l)rought onl}- in Superior Court, in rem, and 
local as to venue, when affecting real propertv. 8 Cal. App. 160; 17 
Cyc. 1335 ; 17 Enc. PI. and Pr. 946. 

684. Necessary facts to state a cause of action to redeem are, 

1. Description of property sought to be redeemed. 

2. Facts showing plaintiff's interest therein, and interest of others 
therein. 

3. Facts showing creation or existence of lien. 

4. Particular facts showing plaintiff's right to redeem. 60 Cal. 157. 

fa) That his right has not been foreclosed, or 

(b) If so, show fraud, mistake, or invalidity of proceedings. 

(c) Performance necessary steps to effect redemption. 

5. If delay or laches, allege excuse therefor. 

6. Offer to pay debt, interest or necessary sums to redeem. 164 Cal. 

255; 153 Cal. 234; 149 Cal. 630; 122 Cal. 509; 17 Enc. PI. and Pr. 
962. 



685. Provisional Remedies of Injunction or Receiver may be used under cir- 
cumstances requiring. Sees. 320, 331 ante. 



686. Defendants may plead. 

1. Usual defenses by denial. Sec. 195 ante. 

2. New matter — laches, statute limitation, or anything showing loss 
right redemption. Sees. 203, 204 ante. 

3. No counter-claim or cross-complaint necessary. Sec. 229 ante. 



687. Action tried by Court — no jury can be demanded. Reference may be 
made to take account, 
1. Judgment usually fixes time to pay amount due stating it. 

(a.) If paid, directing property to be released or conveyed, 
(b) If not paid, quiet title against all claims to redeem. 112 Cal. 
581 ; 138 Cal. 651 ; 152 Cal. 426 : 17 Enc. PI. and Prac. 971. 



Subrogation. 

688. A rule of equity substituting another person in place of a creditor, to all 
the rights and remedies of creditor, in relation to debt and its securities. 
1. Applied when such person pays the debt to creditor. 

(a) Under some compulsion, necessity, or agreement. 

(b) Not available to strangers or voluntary payments. C.C. 
2903; 125 Cal. 650; 37 Cvc. 363; 159 Cal.^^35 ; 149 Cal. 617; 
154 Cal. 520; 4 Cal. App. 478 ; 37 Cyc. 363. 

201 



689. The \arious relations and circnnistances in wliich doctrine is applied too 
numerous to specify but may be traced in authorities cited. 
C.C. 2903, 2904 — Redemptioner and inferior lienor. 
C.C. 2854 — Creditor to securities held by surety of debtor. 
C.C. 274.^ — Insurer to right of contribution from other insurers. 
C.C. 2848, 2849 — Surety to rights of creditor against ])rincipal. 
Z7 Cyc. 392, et seq.— various relations. 149 Ca'l. 617; 161 Cal. 2.S7. 



690. Ordinarily no action is brought to enforce subrogation alone, but applied 
in various actions 

1. To enable |)arty to enforce rights and remedies to which he is 
subrogated. 

2. To defend and prcjtect his interests by subrogation against ])arties 
claiming property or rights. 8 Cal. App. 689. 

3. Simply enables party to sue or defend in various actions involving 
rights subrogated. 

4. All pleadings involving should allege facts showing right to sub- 
rogation. 122 Cal. 674; 78 Cal. 600^ 159 Cal. 535 ; 149 Cal. 617; 37 
Cvc. 383 ; 20 Enc. PI. and Prac. 996. 



Contribution. 

691. A principle of Ec^uity which enables one joint obligor on contract to 
compel others jointly obligated with him therein to pay to him their 
share of the obligation when he has paid more than his share of the 
obligation. 

1. Applies only to contract obligations. 

2. Not applied between joint tort-feasors. 162 Cal. 136; C.C. 1432; 
9 Cyc. 793-809 ; 5 Stand. Proc. 498. 

3. Between co-tenants. 167 Cal. 459; 168 Cal. 369; 132 Cal. 480. 



692. No action brought specially for such purpose alone, but enables party 
to sue in actions at law, or when legal remedv insufficient, in equitable 
actions. Pom. Rem. 282; 132 Cal. 480. 



693. When an action is brought against all joint obligors contribution may 
be enforced therein 
1. When judgment against all, but enforced against or paid by one. 

(a) He may enforce the judgment against the others. C.C. P. 709. 

(b) On filing notice with Clerk in 10 days. 



Tax Liens. 
694. The ])ayment of taxes levied on property is enforced ; 

1. Usually by sale of property as provided by law. 

2. May be by action brought by proper public authorities. 

(a) In such case validity of tax may be tested by defense to such 
action. 161 Cal. 204; 37 Cyc. 1240. 

202 



695. In case tax is enlorccd Ijy proceedinj^s ul sale without suit, taxpayer 
may test validity of tax in either following ways: 

1. Pay tax under protest; then bring action to recover tax paid 

(a) Against City, County or District levying tax. 

(b) Must be commenced within 6 months after jKiyment under 
protest. Sec. 36 (22) ante: 158 Cal. 437; 160 Cal. 72, 124. 
129: 162 Cal. 164; 163 Cal. 108; 164 Cal. 7.S1 ; 167 Cal. 762, 
425 : 168 Cal. 270, 436. 

2. Refuse to pay tax, and bring action to restrain by Injunction, 
issuance of deed after the sale, on ground ta.x levy was void or 
invalid for non-compliance with law. 

If void on its face. Injunction will not be granted. Payment of 
tax required. 149 Cal. 595; 150 Cal. 637; 151 Cal. 197, 616; 160 
Cal. 106; 163 Cal. 108; 164 Cal. 398. 

3. Refuse to pay tax, and after sale, bring action to quiet title; or 
defend any action bv purchaser to quiet his title obtained by sale. 
161 Cal. 325, 341; 162 Cal. 161, 206. 217, 221, 226, 366-400, 668; 
163 Cal. 49, 249; 166 Cal. 261 ; 165 Cal. 353, 356:37 Cyc. 1257. 



696. \'alidit}' of assessments may be tested. 

1. As defense, in actions to enforce. 

2. Or enjoin sale before it is made, or 

3. Action to quiet title after sale for some irregularity. 

4. Or pay under protest and sue to recover. 160 Cal. 9 ; 161 Cal. 189, 
676; 162 Cal. 422; 164 Cal. 406, 705: 167 Cal. 454; 37 Cyc. 1245, 
1258, 1270. 



203 



LECTURE 45. 

Actions or Proceedings Affecting Personal Status. 

700. Such actions or proceedings are those peculiar to certain relations, con- 
tractual in nature, but created by law, other .than those business re- 
lations created by contract. 

1. Husband and wife — divorce, annul marriage, for support. Sees. 
701, 710, 717 post. 

2. Parent and child — for support — adoption. Sees. 719, 722 post. 

3. Guardian and ward — Probate proceedings. Sec. 724 post. 

4. Ancestor and heir — Probate proceedings. 

5. Corporation existence — Quo Warranto — Proceedings to dissolve^ 
Change of Name. C.C.P. 802. Sees. 729,734, 737 post. 

6. Partnership — Action to dissolve. Sec. 739 post. 

7. Right to office — Quo Warranto — contesting election. 729, 740 
post. 

8. Rights of elector — Compel Registration, etc. Sec. 740 post. 



Divorce. 

701. An action for divorce is one brought to obtain a decree dissolving the 
bonds of matrimony between husband and wife. 

1. Only absolute — no limited divorces granted in this State. 

2. In it, custody and support of children in the State may be awarded. 
22 Cal. App. 448; 14 Cal. App. 156; 154 Cal, 341, 644. 

3. Alimony for support of wife or husband may be granted, if mar- 
riage valid — permanent or pendente lite. 124 Cal. 389 ; 161 Cal. 
348, 481; 156 Cal. 651. 

(a) On personal service of defendant or (154 Cal. 540; 150 Cal. 
99.) 

(b) Seizure of property by Receiver. 115 Cal. 275. 

4. Division of Community property may be made. 12 Cal. App. 199. 

5. Title of separate property cannot be quieted or determined there- 
in, except by consent. C.C. 136-148; 165 Cal. 31; 161 Cal. 134; 
160 Cal. 28; 159 Cal. 197; 21 Cal. App. 59; 20 Cal. App. 457; 17 
Cal. App. 241; 16 Cal. App. 96; 7 Stand. Proc. 738-859; 14 Cyc. 
573, et seq. 



702. Such actions are equitable, l)rought only in Superior Court, of plain- 
tiff's residence, in rem as to divorce, custody of children, alimony, or 
division of property when seized by process, but in personam as to ali- 
mony, costs and attornev fees when no propertv seized. 24 Cal. App. 
191 ; 19 Cal. App. 481 ; 130 Cal. 597. 
1. Defendant obtain change venue to count v of his residence. 14 
Cal. App. 163; 9 Cal. App. 209; 112 Cal. 101; 115 Cal. 275; Sees. 
51, 63, 527, 530 ante; 7 Stand. Proc. 738-748; 14 Cyc. 576, 581. 



703. In California, such actions may be maintained on one or more of six 
grounds : 

1. Adulter}^ — sexual intercourse with another person. 

2. Desertion — voluntarv separation for one vear. 165 Cal. 352, 717; 
160 Cal. 727. 

3. Failure to provide — having ability, for one year. 168 Cal. 346. 

4. Habitual Intemperance — disable to attend business for one year. 

204 



5. Extreme cruelt^' — resulting- in injurv to body or health. 135 Cal. 
665 ; 21 Cal. App. 59 ; 148 Cal. 239. 

6. Conviction of Felony — by criminal Court on prosecution. C.C. 91- 
107; 14 Cal. App. 487; 144 Cal. 625 ; 14 Cyc. 593. 



704. Only parties are usuall\' husband and wife, but other ])arties may be 
joined 

1. When division of proi)erty is sought and other parties claim in- 
terest therein. 

2. Community property conveyed in fraud of plaintiff, conveyance 
may be set aside. 162 Cal. 27; 115 Cal. 275. 

(a) In such case grantees and claimants mav be joined. 7 Stand. 
Proc. 749; 14Cyc. 653. 



705. Necessary facts to state a cause of action for divorce are 

1. Fact, time and place of marriage. 

2. Residence of plaintifif. 23 Cal. App. 423. 

3. Fact showing grounds of divorce — only one ground alleged in each 
count. 3 Cal. App. 204; 7 Cal. App. 661 ; 134 Cal. 346. 

4. Names of children and reasons plaintiff should have custody. 

(a) Defendant's unfitness should be alleged if relied upon. 

5. If division community property, describe it. 

6. If alimony and attorneys' fees sought, allege 

(a) PlaintilT's necessity for the same — no income, property or 
means of support. 

(b) Defendant's ability — has income property or able to earn 
money. 

7. If conveyances property sought to be set aside, allege 

(a) Facts showing illegality of transfer. 162 Cal. 27. 

(b) Facts of fraud upon plaintiff as in creditor's suits. 166 Cal. 
469; 156 Cal. 434; 23 Cal. App. 10; 18 Cal. App. 602; 12 Cal. 
App. 458; 115 Cal. 275: 7 Stand Proc. 759, 852; 14 Cyc. 662. 



706. After filing complaint and before trial defendant may be required to pav 
plaintiff' alimony for support of self or children or both, for attorney 
fees and expenses prosecute action. 
1.' By motion on notice served on defendant or his attorney, or 

2. On citation and order to show cause. 

3. Plaintiff' must produce evidence by affidavits or oral at hearing. 

(a) Showing plaintiff' has no means to pay same. 

(b) Defendant's ability to pay. 

(c) On hearing merits of action for divorce not considered. 

4. Attorney fees not allow^ed at trial in Interlocutory decree. C.C. 
136-148; 19 Cal. App. 559; 108 Cal. 45 ; 15 Cal. App." 614. 

5. Defendant mav take same proceedings against plaintiff". 7 Stand. 
Proc. 814; 14 Cyc. 742. 



707. Injunctions may l)e granted to restrain disposition of property and in- 
terference with plaintiff". Receiver may be appointed to take and hold 
property. 110 Cal. 65 ; 150 Cal. 6; 111 Cal. 495 ; 115 Cal. 275 ; Sees 320, 
331 ante; 14 Cyc. 661. 

205 



708. Defendant may defend — 

1. All usual defenses by denial. 

2. Defenses by new matter — condonation, collusion, connivance, re- 
crimination. Statute of Limitation, or laches. \S3 Cal. 56. 

3. Defendant may file cross-complaint for divorce, or annul mar- 
riage, or for separate maintenance. 82 Cal. 413; 89 Cal. 324. 

(a) Although not in county of his residence. 18 Cal. App. 602 ; 
15 Cal. App. 614; C.C. 111-128. 

4. Judgment in another State as bar. 164 Cal. 449; 161 Cal. 134; 7 
Stand. Proc. 771 ; 14 Cyc. 628, 670. 672. 

709. Action tried by Court, no jury can be demanded. l)ut may be referred 

1. At trial if granted, only interlocutory decree entered. 

2. Final decree after one vear from entry interlocutory. 162 Cal. 51 ; 
9 Cal. App. 748. 

3. Interlocutory decree not made by default, and only on corrobora- 
tive evidence. C.C. 130-132; 164 Cal. 181 ; 167 Cal. 732; 156 Cal. 1 ; 
17 Cal. App. 241 ; 10 Cal. App. 203. 

4. Judgment for alimony may be enforced by execution or contempt 
proceedings. 163 Cal. 423. 

5. Husband may be required to support child awarded therein to 
wife. 162 Cal. 347. 

6. Attorneys' fees and expense appeal may be allowed. 23 Cal. App. 
423. 

7. Allowance of attorneys' fees in Interlocutory judgment not author- 
ized. 19 Cal. App. 559; 108 Cal. 45; 15 Cal. App! 614. 

8. Property rights may be determined in Interlocutory decree. 12 
Cal. App. 199. 

9. Alimony cannot be allowed after judgment by amendment nor on 
motion." 124 Cal. 422; 7 Stand. Proc.>86, 794; 14 Cyc. 701, 710. 



Annulment of Marriage. 

710. An action may be maintained by husband or wife against the other to 
have declared void a marriage which is voidable for any following rea- 
sons : 

1. Plaintiff under age of legal consent, and consent of parent or 
guardian not obtained. 

2. Former husband or wife of either party li\ing at time of mar- 
riage. 

3. Either party of unsound mind. 161 Cal. 87, 380; 18 Cal. App. 609. 

4. Consent of either party obtained by fraud or force. 

5. Either party, physically incapable of entering marriage state at 
time. 

6. Such marriage deemed valid until declared void by decree. 160 
Cal. 21, 671; 14 Cal. App. 285; 10 Cal. App. 97; 6 Cal. App. 420; 

26 Cyc. 899 ; 13 Enc. PI. and Pr. 870, 871. 



711. vSuch actions are ecjuitable, brought in Superior Court only, transitory, 
but may be changed to defendant's residence, and is in rem. Sees. 527, 
530, 51, 65 ante; 26 Cyc. 907; 13 Enc. PI. and Prac. 871. 

206 



712. Custody of chiklren may be awarded, their supj)iirt provided, commun- 
ity property divided, alimony or attorneys' fees awarded as in divorce 
cases. 161 Cal. 87: 100 Cal. 671 ; 13 Enc. PI. and Pr. 886, 884; 94 Cal. 
446. 



713. Necessary allegations to state a cause of action are 

1. Facts, date and place of marriage. 

2. Facts showing any one of the grounds of nullity above mentioned. 

(a) If more than one, each ground alleged in separate count. 

3. Names of children and facts showing right to custody. 

4. Descri^ition of any property to be divided or awarded for support 
children. 10 Cal. App. 97 on fifth ground : 26 Cyc. 912; 13 Enc. PI. 
and Pr. 874. 



714. Same Provisional Remedies may be used for same purposes as divorce. 
Sec. 707 ante. 



715. Defendant may defend by denials or new matter statute limitations. 

1. May file cross-complaint for divorce, in case marriage not an- 
nulled. Sees. 195, 203, 204, 225 ante ; 26 Cyc. 911 ; 13 Enc. PI. and 
Pr. 880, 881. 



716. Action tried by Court or may be referred to Referee, and final judg- 
ment is entered on findings. No jury may be demanded. Sees. 369, 
371, 385 ante; 26 Cyc. 916; 13 Enc. PI. and Pr. 882. 



For Support without Divorce. 

717. The wife may maintain an action against husband for maintenance 
without divorce, when 

1. He deserts her, or fails to provide for her, or 

2. When she has any cause of action for divorce. 

3. She must allege facts showing one of these grounds, her need of 
support, defendant's ability and their marriage same as in complaint 
for divorce. 162 Cal. 27; 161 Cal. 481 ; 23 Cal. App. 179; 153 Cal. 
254; C.C. 137; 21 Cyc. 1598-1610; 123 Cal. 653 ; 97 Cal. 125. 



718. Husband may sue wife for maintenance out of her separate property, 
when 

1. He has not deserted her. 

2. There is no community property and 

3. He is unable from infirmity to support himself. C.C. 176; 117 Cal. 
633. 



719. Parent may maintain action against child, and child against parent for 
support and maintenance when unable to support himself. C.C. 196, 
206; 150 Cal. 667; 164 Cal. 504; 149 Cal. 140: 29' Cyc. 1605, 1619. 

207 



720. Third persons furnishing necessaries to wife, child, etc., may sue and 
recover against husband or parent liable for her or its support. C.C. 
205, 207. 208. 174; 20 Cal. App. 288; 21 Cyc. 1444-1449; 29 Cyc. 1608, 
1614. 



721. Pleadings in such actions are not peculiar, but should allege the facts 
showing right to recover, and all defenses as in actions generally. 29 
Cvc. 1614. 



Adoption of Child. 
722. Relation of Parent and child is created only in two ways: 

1. By birth. C.C. 173-215. 

2. By adoption according to forms of law. C.C. 221-230; 164 Cal. 
312; 163 Cal. 514; 18 Cal. App. 120; 1 Cyc. 917. 



723. The Proceedings to adopt are had in Superior Court of County where 
adopting parent resides, as follows : 

1. File a petition in writing signed by adopting parent (and wife 
or husband if any). 

(a) Showing names of persons desiring to adopt. 

(b) Name of child to be adopted, and name of parents or persons 
having charge. 

(c) Showing petitioner able to care for child. 

(d) Consent of parents or persons in charge of child. 

2. Attached to petition should be agreement executed by person 
adopting 

(a) That child shall be adopted and treated as own child. 

3. Also attached should be consent of proper persons to adoption of 
child. 

4. All parties appear before Court, and be examined. 

5. If granted, Court makes order of adoption. C.C. 226-229 ; 167 Cal. 
8; 163 Cal. 514; 14 Cal. App. 156; 1 Cyc. 918 et. seq. 

6. Foregoing does not apply to adoption of illegitimate child by its 
father. C':C. 230; 5 Cyc. 632; 142 Cal. 158. 



Probate Proceedings. 

724. These are special proceedings provided in Code as the only means of 
determining following matters : 

1. Death of a person owning property. 

2. Proving and admitting wills, or administering estates without 
wills. 

3. Collection of estate, payment of debts and claims — 

(a) Done by Executors or administrators for that purpose. 

4. Determining who are the heirs, or devisees entitled to the estate. 

5. Distribute estate to such heirs and devisees, determining their 
interests, and dividing estate among them. 109 Cal. 417; 108 Cal. 
336; 119 Cal. 666. 

6. When claim sought to be enforced, mav determine a set ofif. 168 
Cal. 253; 18 Cyc' 55. 

208 



725. Such proceedings also provide method of determining 

1. Death, to show termination of life estate. 

2. Death, to show fixing of rights in community. 

(a) But not to determine whether property is community vested 
in deceased and sought to be recovered by surviving spouse. 

(b) Regular action should be brought for that purpose against 
executor or administrator. C.C.P. 1723; 102 Cal. ?37 ; 131 
Cal. 447; 136 Cal. 38.S ; 148 Cal. 157; 159 Cal. 549. 



726. Such proceedings also provide method f(jr apjxjintment of Guardians for 
minors, insane or incompetent persons, and caring for their estates. 
168 Cal. 688; 165 Cal. 202; C.C.P. 1747-1810; 21 Cyc'. 20. 



727. Such proceedings are brought and conducted in Superior Court, whose 
jurisdiction is limited to matters above indicated, are in rem, and local 
as to venue. C.C.P. 1294. 1295 ; 119 Cal. 150; 147 Cal. 343 ; 108 Cal. 336; 
151 Cal. 326. 



728. The pleadings are too numerous to here specify but must be of the char- 
acter, and contain all the allegations, objections and defenses specifically 
provided by the Code therefor and when not so provided are governed 
by same general rules as in actions. C.C.P. 1713-1722, 1300, 1312, 1371, 
1537. 



Quo Warranto. 

729. This is a special proceeding provided by Code to inquire into and 
determine the right of 

1. A corporation, public or private — to exist or to exercise a corpor- 
ate or other franchise. 

2. An individual- — to hold and exercise any public office or franchise. 

3. A franchise is a right or privilege of public nature conferred by 
grant from Government. C.C.P^ 803 ; 44 Cal. 89 : 32 Cyc. 1412 ; 
19 Cyc. 1451. 

4. Writ of scire facias is abolished bv Code. C.C.P. 802; 21 Cal. 129. 



730. When a person holds and exercises an existing ofBce, or franchise, or a 
corporation is acting as such, or exercising a franchise, their right to do 
so cannot be questioned in any other action or proceeding. 

1. The remedv bv Ouo Warranto is exclusive. C.C. 358; 137 Cal. 
444: 151 Cal. 508.'^ 

2. This does not refer to pleas of ultra vires when corporation is sued 
on contract. 

3. Nor right to mandamus to be admitted to ofifice. when right thereto 
not disputed. C.C.P. 1085. 



731. Such proceedings may be prosecuted only by the Attorney General of 
State in the name of People of State as plaintiff against the person or 
corporation. 

209 



1. L'pon his own information. 

2. When he is directed to do so by Governor or 

3. Upon complaint of a private party to him. 6 Cal. A])p. 122. 

(a) May be person entitled to the of^ce or any citizen. 



732. Such private party may nKJve the Attorney Ocneral to prosecute such 
proceedings — • 

1. l)y filing with him a complaint showing grounds f(jr action. 

2. Give him securitv bv undertaking or bond for pavment costs and 

damages. 151 Caf. 451 ; C.C.P.'^SIO. 

733. The proceedings may be prosecuted in Superior or higher Courts, by 
such pleading's, defenses, provisional remedies, and other rules as spe- 
cially provided therefor and otherwise under general rules governing 
actions. 108 Cal. 431 ; Sees. 49, 50, 51 ante. 

Change of Name. 

734. This is special proceedings providing the exclusive method of obtaining 
permission by corporation or individual to change name and have it 
recorded. 

1. Name of corporation is that adopted in its articles or charter. 

2. Name of person is that given him at birth, or assumed by him after. 

3. Name of person consists of surname and Christian or given name. 

4. Change of name in divorce proceedings not authorized. 

5. Wife's assuming name of husband only a custom. 

(a) On divorce should drop it without action in Court. C.C.P. 
1275-1279; 29 Cvc. 263; 21 Am. and Eng. Enc. Law 305; 
14 Enc. PI. and Prac. 271 ; 123 Cal. 525 ; 126 Cal. 57 ; 14 L.R.A. 
690; 26 L.N.S. 1167; L.R.A. 1915 D. 982. 



735. There is no law prohibiting a person from changing his name or adopt- 
ing any name he chooses without these proceedings : 

1. May hold property, sue or be sued, and do business in any name he 
adopts. 38 Cal. 44; 84 Cal. 242; 85 Cal. 6; 154 Cal. 83; 9 Cal. 
App. 128. 

2. If doing business in fictitious name, nuist file certificate thereof, 
C.C. 2466. 



736. Proceedings to change name are in Superior Court of County where 
person or corporation reside, and are conducted as follows : 

1. File a petition in waiting containing — 

(a) Present name and residence, place of birth of person. 

(b) Name proposed and reasons for change. 

(c) Date of incorporation and principal place btisiness of cor- 
poration. 

2. Order to show cause is then made fixing time and place of hearing. 

3. This order is published or served as provided in Code. 

4. Matter heard and order granting or denying entered. 

(a) If granted, certified copy must be filed with Secretary State, 
and of corporation with County Clerk where original articles 
were filed. C.C.P. 1277-1279; C.C. 300.(a) ; 158 Cal. 603. 
Dissolution of Corporations and Partnerships. 

210 



737. The voluntary dissolution of corporations is effected by special pro- 
ceedings provided for that purpose l:)y Code prosecuted in Superior 
Court. 

1. File application in writing, verified, signed by majority Directors 
or Trustees stating 

(a) Resolution of stockholders or members for dissolution. 

(b) All claims and demands against corporation paid and dis- 
charged. 

2. Order Court setting time and place for hearing. 

3. Notice given by Clerk according to order. 

4. Hearing application and all objections by Court. 

5. Order granting or denying entered as any judgment. 

(a) Certified copy filed in ofHce Secretarv State. C.C.P. 1227- 
1234. Effect of dissolution. 166 Cal. 322; 165 Cal. 708; 157 
Cal. 596; 14 Cal. App. 261 ; 150 Cal. 575; 10 Cyc. 1303. 



738. luAoluntary Dissolution of Corporation is eft'ected by Quo Warranto 
proceedings, above exi)lained. Sec. 729 ante. 10 Cyc. 1271. 



739. The dissolution of a partnership is enforced only by an equitable action 
for that purpose brought by one partner a'gainst the other for that pur- 
pose and for a general accounting between them. 

1. Only action one partner may maintain against another relating to 
partnership business. 

2. Cannot maintain actions at law for propertv or money due therein. 
Pom. Rem. 42, 262 ; Sec. 108 ante. 

3. Receiver may be appointed. 13 Cal. App. 720; Sec. 320 ante. 



Electors Rights. 

'40. \arious remedies are provided for electors to protect their right to vote 
and other matters connected therewith. 16 Cal. App. 499; 11 Cal. App. 
582. 

1. Right to contest election of anv person to ofifice. (C.C.P. 1111- 
1127.) 

2. Right to compel registration as an elector or voter bv action. 165 
Cal. 776; Pol. C. 1108. 

(a) Probably mandamus proper proceedings as heretofore ex- 
plained. Sec. 607 ante. 

3. Registration of person illegally may be cancelled bv action. Pol. 
C. 1109. 

(a) Persons right to vote though registered probablv tested on 
Quo Warranto. Sec. 729 ante; 158 Cal. 537. 



211 



LECTURE 46. 

Injuries to the Person. 

743. An injury to the person, is one that injures the person in his body, 
health, feehngs, his reputation, his Hberty, his personal relation, etc, 
C.C. 43. 



744. Various remedies are provided by law to prevent or redress such injuries. 

1. Habeas Corpus — to release body from unlawful restraint. Sec. 
745 post. 

2. False imprisonment — to recover damages for unlawful restraint. 
Sec. 748 post. 

3. Malicious prosecution — to recover damages for malicious prose- 
cution. 

(a) Of person in criminal or civil proceedings, (Sec. 749 post) and 

(b) Of property in civil actions or process therein. 

4. Libel — to recover damages resulting from unlawful publications. 
Sec. 756 post. 

5. Slander — to recover damages resulting from unlawful words 
spoken. 

6. Assault and battery — willful injuries inflicted on body. Sec. 762 
post. 

7. Negligence — injuries inflicted by want of care. Sec. 850 post. 

8. Injunctions, abating nuisances, bonds to keep peace, restraining 
threatened injuries. Sees. 872, 895 post. 

9. Abduction, seduction, criminal conversation. Sec. 768 post. 



Habeas Corpus. 

745. A writ of Habeas Corpus is one commanding the production of a person 
restrained of his liberty, before the Court that cause thereof may be 
inquired into and determined. 149 Cal. 732. 

1. It is the proper remedy in all cases of restraint of person. 

2. Code designates it a special proceeding of a criminal nature. 

(a) But is a prerogative writ of a civil nature. 

3. Intended solely as means of releasing person illegally restrained — 
not to correct judicial errors. 162 Cal. 200; 161 Cal. 632; 9 Cal. 
App. 690; 154 Cal. 355. 540; Penal Code 1473: 21 Cvc 282; 135 Cal. 
341; 151 Cal. 340. 

4. Court may inquire into validity of law or ordinance under which 
Petitioner is held or convicted. 166 Cal. 762, 770; 165 Cal. 416, 
677, 789; 164 Cal. 504, 724, 735 ; 163 Cal. 457, 668; 10 Cal. App. 116. 
Juvenile Court law. 162 Cal. 200; 162 Cal. 331 ; 161 Cal. 220; 162 
Cal. 687, 701. 

Cannot be used in self invited restraint. 160 Cal. 334; 150 Cal. 
663; 9 Enc. PI. and Prac. 1002; 10 Stand. Proc. 911. 



746. The writ may be issued by Superior or any higher Court or Judge 
thereof upon application of person restrained or any person in his 
behalf, by following proceedings; (Sees. 49, 50, 51 ante.) 
1. File a petition in writing verified by petitioner, showing 

(a) Title of Court and cause designated as 'Tn re John Smith. 
On Habeas Corpus." 

212 



(b) Fact that person named is imprisoned cjr restrained of his 
liberty. 

(c) Name of officer or all persons by whom restrained, or de- 
scribing them if unknown. 

(d) Place where person is restrained. 

(e) If restraint claimed to be illegal allege facts wherein ille- 
gality consists. 

(f) Signed by petitioner or his attorney, and verified. Pen. C1474. 

2. Writ issued and served on person restraining, directing him to 
produce person restrained before Court at time and place therein 
specified. 

3. Person to whom writ is directed, on day specified — 

(a) Produces body of person restrained unless too infirm. 

(b) Makes return showing cause of restraint. 

4. Petitioner may controvert return or except to its sufficiency. 

5. Court then tries matter on return and any evidence received, and 
enters judgment. P.C. 1476-1484; 151 Cal. 340; 154 Cal. 168; 9 
Enc. PI. and Prac. 1018; 10 Stand. Proc. 920. 



747. Rule of Res Adjudicata does not apply to judgments therein, and when 
not released on one application, may be in like manner presented anew 
to other Courts and judges, until whole judiciary is exhausted. 7 Cal. 
App. 531, 145 Cal. 89; 28 Cal. 247. 



False Imprisonment. 

Malicious Prosecution. 

748. The action for false imprisonment is brought to recover damages only, 
resulting from any illegal or unauthorized restraint of the person. 

1. Element of malice not involved in cause of action. 

5 Cal. App. 117; 9 Cal. App. 45; 162 Cal. 621 ; 8 Stand. Proc. 913; 

2. Its existence only considered in determining exemplarv damages. 
19 Cyc. 319 ; 8 Enc. PI. and Pr. 841. 



749. The action for malicious prosecution is brought to recover damages 
only resulting 

1. From prosecution of civil or criminal action against the person 
wrongfully and with malice. 

2. From prosecution of civil action or process against property 
wrongfully and with malice. 

3. Malice and wrongfulness of prosecution essential elements of 
cause of action. 5 Cal. App. 117; 165 Cal. 36, 493; 162 Cal 444; 
15 Cal. App. 589; 26 Cyc. 6-65; 13 Enc. PI. and Pr. 420. 



750. Both actions are purely legal, in personam, brought in Superior or Jus- 
tice Courts, according to amount damages claimed, transitory as to 
venue, and parties mav demand trial bv jury, and are ex delicto — based 
on tort. Sees. 522, 526, 51, 52, 65, 383. ^30 ante ; 19 Cyc. Z7Z ; 26 Cyc. 68. 

213 



751. Necessary allegations to state a cause of action for false imprisonment 
are : 

1. The fact of plaintiff's restraint by defendant or at his instance. 

2. Facts showing cause of restraint and that the cause or process was 
illegal, or 

3. That there was no cause or without process and against plaintiff's 
will. 

4. The injuries or damages suffered by reason thereof, stating 
amount. 

5. Allege facts showing any special damages suffered as 

(a) Attorneys' fees and expenses incurred to procure release. 

(b) Doctors' bills, nursing, medicine, loss of time, and the like. 

6. Facts showing circumstances for recovering exemplary damages. 
162 Cal. 621 ; 5 Cal. App. 121 ; 86 Cal. 633 ; 9"Cal. App. 45 ; 8 Stand. 
Proc. 959 ; 19 Cyc. 358 ; 8 Enc. PL and Pr. 845. 



752. Defendant can make the usual defenses by denial or by new matter, 
statute limitations, mitigating circumstances, etc. Sees. 195, 203, 204, 
213, 225 ante. 

No counter-claim or cross-complaint is available. 
Probable cause for arrest, no defense. 162 Cal. 621 ; 8 Stand. Proc. 
19 Cyc. 338, 360. 



753. Necessary allegations to state a cause of action for malicious prosecu- 
tion are 

1. Fact that an action was prosecuted or process issued by defend- 
ant or at his instance. 

(a) Alleging character action or process and how plaintiff was 
affected thereby. 

2. That action or process has been dismissed or terminated in plain- 
tiff's favor. 9 Cal. App. 45. 

3. That same was prosecuted or issued with malice and without 
probable cause. 165 Cal. 36; 162 Cal. 444; 24 Cal. App. 573; 153 

Cal. 215. 

4. Facts showing how plaintiff' was injured or damaged thereby and 
amount. 

5. Facts showing any special damages as above explained. 

6. Facts showing circumstances for exemplarv damages. 165 Cal. 

493 ; 154 Cal. 99 ; 26 Cvc. 71 ; 13 Enc. PI. and Pr. 427. 



754. The defendant may make usual defenses by denial, and by new matter, 
statute limitation, that he acted on advice of attorney, or any fact show- 
ing probable cause or want of malice, and mitigating circumstances to 
reduce damage. 157 Cal. 333; 168 Cal. 261. 

No counter-claim nor cross-complaint can be made. 

No provisional remedies available. Sees. 195, 203. 204, 213, 225 ante; 

26 Cyc. 79. 

755. Either action can be prosecuted only by person injured against the per- 
sons committing the acts, or aiding therein. 

1. Cannot be assigned, and do not survive death of either party. Sees. 
85, 97 ante ; 57 Cal. 245 ; 8 Stand. Proc. 945 ; 19 Cyc. 325 ; 26 Cyc. 66. 

214 



Libel and Slander. 
756. These actions are precisely the same in all respects except arise out of 
different kind of acts, — 

1. Libel — is a false and unprivileged publication of defamatory mat- 
ter by writing-, printing, picture or other representation to the eye. 
161 Cal. 511 ;'l4 Cal. A])]). 1 ; 9 Cal. App. 481 ; 154 Cal. 29; 153 Cal. 
757. 

2. Slander — is any false and unprivileged ]>ublication of defamatory 
matter by any other means — usually spoken. 165 Cal. 527; 167 
Cal. 587, 692; 160 Cal. 143; 25 Cyc. 243. 



757. This action is ])urely legal, ex delicto, in personam, brought in either 
Superior or Justice Court according to amount claimed, and transitory 
as to venue, and jury trial may be demanded of right. Sees. 51, 52, 65, 
383, 522, 526, 530 ante ; 25 Cyc. 433 ; 13 Enc. PI. and Pr. 28. 



758. The action can be prosecuted only by party injured and against the 
party committing the act, or who aided therein ; they cannot be assigned 
and do not survive death of either party. Sees. 85, 83, 84, 97 ante ; 25 
Cvc. 425 ; 13 Enc. PI. and Pr. 29. 



759. Unlike all other actions plaintiff is required to give a bond of $500 on 
commencing action to cover costs and charges which may be awarded 
against plaintiff in action. 153 Cal. 669. 

1. If plaintiff' succeeds, he is allowed $100 attorney's fees. 

2. If defendant succeeds, he is allowed a like amount. 3 Cal. App. 
124: Stat. 1871, p. 533; Amend. Stat. 1880, p. 81; C.C.P., p. 863 
Appendix; 21 Cal. App. 112, 365; 14 Cal. App. 1 ; 5 Cal. App. 712. 



760. Necessary jlllegation to state a cause of action for libel or slander are 

1. Fact of publication by defendant or at his instance. 

(a) Particular manner of publication to show whether libel or 
slander." 

(b) Allege the matter published to show it was libelous or 
slanderous matter. 154 Cal. 79. 

2. Allege generallv that same was published or spoken concerning 
plaintiff. (C.C.P. 460.) 

3. That same was false. — Malice not an element. 160 Cal. 143- 151 
Cal. 1. 

4. Facts showing plaintiff was injured thereby and amount thereof. 

5. Facts showing special damages suffered as in other torts. 

6. Facts and circumstances showing grounds for exemplary damages 
— in which malice must be shown. 165 Cal. 527; 167 Cal 587 
160 Cal. 143 ; 151 Cal. 1 ; 156 Cal. 343 ; 20 Cal. App. 153 ; 4 Cal. App. 
343; 146 Cal. 616; 25 Cyc. 434: 13 Enc. PI. and Prac. 32. 

761. Defendant may plead the usual defenses by denial or new matter. 
Statute limitations, also plead the truth of matter published as justifica- 
tion or that publication was privileged, and also mitigating circum- 
stances to reduce damages. 167 Cal. 692; 161 Cal. 511 : 14 Cal. App 1 ; 
148 Cal. 422; 153 Cal. 757; 9 Cal. App. 481 ; 151 Cal. 1. 

215 



No Counter-claim nor cross-complaint can be filed. 

No Provisional Remedies are available. 25 Cyc. 413, 456; 13 Enc. PI. 

and Prac. 70. 



Assault and Battery, or Trespass to Person. 

762. An assault is the threat with present ability to do an unlawful and 
violent injury to the body; while battery is the doing of an unlawful 
and violent act upon the body inflicting injury more or less severe, or 
even death. 

Trespass is any unlawful act done by force resulting in injury to body. 
38 Cyc. 999; 3 Stand. Proc. 32; 3 Cyc. 1066; 2 Enc. PI. and Prac. 835, 862. 



763. An assault and battery, or trespass is not unlawful when done under 
following circumstances. 

1. To protect person or property of oneself from wrongful injury. 
152 Cal. 705 ; 9 Cal. App. 417. 

2. To protect wife, husband, child, parent or other relative therefrom. 

3. To protect member of one's family, ward, servant, master or guest. 

4. When done through unavoidable accident, or without intent to 
injure. 

5. When result of mere negligence — not willful. Sec. 852 post; C.C 
50; 153 Cal. 118; 3 Cyc. 1069-1079. 



764. Actions therefor are actions at law, ex delicto, in personam, in Superior 
or Justice Court according to amount claimed, transitory as to venue, 
may demand jury trial and damages the only relief and no provisional 
remedies available. Sees. 51, 52, 65, 383, 522, 526, 530 ante.; 3 Stand. 
Proc. 38; 3 Cyc. 1079. 



765. Can only be brought by party injured against person doing the act and 
any person aiding therein, cannot be assigned, and do not survive, ex- 
cept Code gives other persons the right to sue therefor in some cases. 

1. Parent for injury or death of minor child. C.C. P. 376. 

2. Guardian for injury or death of ward. C.C. P. 376. 

3. Heir, executor, or administrator for death of person not a minor. 
C.C.P. 377; 152 Cal. 290; 9 Cal. App. 564. 

4. Husband or wife for injury or death of the other. 153 Cal. 456. 

5. Minor child for injury or death of parent. 154 Cal. 285. 

6. Master for injury or death of servant. 

7. Wife, children and creditors for death of one in a duel. C.C. 
3347, 3348. 



8. Action cannot be maintained bv husband against wife or vice 
versa. 156 Cal. 32; 6 Stand. Proc. 385; Sees. 83, 84, 85, 97, 101 
ante ; 3 Cyc. 1080. 
766. Necessary allegations to state a cause of action in such cases are : 
1. Fact of defendant inflicting injury upon the person. 

(a) If plaintifif not person injured, show his relation and right 
to sue. 

216 



2. Facts showini^ such injury was wrongful and done wilfully. 

(a) Stating facts as to how, by what means, and manner it was 
done. 

3. Facts showing character, and extent of injury, how plaintiff dam- 
aged, and amount. 149 Cal. 704. 

4. Facts showing any special damages as in other torts. 

5. Facts showing case for exemplary damages. 152 Cal. 705; 19 Cal. 
App. 575: 145 Cal. 10; 3 Stand. Proc. 38; 3 Cyc. 1080. 



767. Defendant may present usual defenses by denial, and new matter — 
Statute Limitations, accident, result of acts of injured party, and any 
thing showing defendant not liable; may present by counter-claim, or 
cross-complaint claim for damages from injury in same affray, but none 
other. 163 Cal. 272; 152 Cal. 705; 9 Cal. App. 417; 3 Stand. Proc. 42; 
3 Cyc. 1083; Sees. 195, 203, 204, 213, 225 ante. 



Abduction. — Alienating Affections, 

Criminal Conversation. 

Seduction. 

768. Abduction is the unlawful enticing, leading, or taking away a person 
from another to whom the person taken is bound by some relation, 
and action therefor may be maintained. 

1. By husband or wife, for abduction of the other. 

2. Parent or child for abduction of the other. 

3. Guardian for abduction of ward. 

4. Master for abduction of servant. 

5. Alienating affections husband or wife — is same as abduction. C.C. 
49; 122 Cal. 253. 

6. Separation husband and wife, caused bv deceit. 164 Cal. 343; 21 
Cvc. 1617. 



769. Criminal conversation is having voluntary adulterous intercourse by a 
person with wife or husband of another, and action may be maintained 
therefor. 

1. By husband or wife, for intercourse with the other against person 
committing, and his aiders. 21 Cyc. 1626. 



770. Seduction is the act of sexual intercourse induced by enticement, fraud, 
flattery, or other means destroying freedom of consent. Rape is having 
sexual intercourse by force or by means of drugs, etc. Actions therefor 
may be maintained, 

1. By wife, unmarried female or woman injured. C.C. P. 374; Sec. 
100 ante. 

2. By husband for injury to wife. C.C. 49. 

3. By parent for injury to unmarried daughter. C.C. P. 375; C.C. 49; 
Sec. 101 ante. 

4. By guardian for seduction of ward. C.C. P. 375; Sec. 101 ante. 

5. By master for seduction of servant. C.C. 49. 

6. By brother for seduction of orphan sister. C.C. 49; 4 Cal. App. 460. 

217 



771. These actions are all of same character and governed by same rules as 
to pleadings and proceedings as actions for assault and battery. See 
Sees. 762-767 Supra. 



Denying Public Entertainment. 

772. All persons have the right, upon the same terms and conditions, of 
entertainment at hotels, and places of public amusement, and if unlaw- 
fullv denied such right, may maintain action therefor to recover. 

1. Actual damages suffered thereby, and 

2. The penalty fixed by statute therefor. C.C. 51-54; 140 Cal. 357; 148 
Cal. 126; 149 Cal. 81. 



773. Such actions are torts and governed by same rules of pleadings and 
proceedings as other actions, except as modified by the statute specially 
applying. 



218 



LECTURE 47. 

Injuries to Personal Property. 

776. An injury to personal proi:)erty consists in depriving: the owner of the 
benefit of it, which is done by takini^, within >ldinj4', deteri(>ratinl^^ or 
destroyinp- it. C.C. 28. 



777. X'arious approj^riate remedies are i)rovided to redress such injuries: 

1. Replevin — to recover the possession thereof. Sec. 77'^ post. 

2. Conversion — to recover daniap^es for takin^^" and deprivinj^^ owner 
thereof. Sec. 787 post. 

3. Trespass — for damages for injuring" or destroying by willful and 
unlawful act. Sec. 798 post. 

4. Negligence — damages for injuring or destroying by want of care. 
Sec. 850 post. 

5. Party not confined to any one, but may pursue either, according 
to relief desired. 134 Cal. 375. 



Replevin. 

778. Replevin, the common law action, still so called in practice under the 
Code, is an action to recover the possession of specific tangible personal 
property, or its value if delivery cannot be had, and damages for its 
detention. 

1. Not the provisional remedy claim and deliverv. C.C. P. 509; C.C. 
3379. 

2. Same efl:'ect and object of common law action of Detinue. C.C. 
3380; 130 Cal. 263; 119 Cal. 322. 



779. Replevin difi^ers from Conversion or other actions in this — (7 Cal. App. 

1. To maintain Replevin defendant must have possession when 
action is brought. 

2. In conversion and other actions, possession when action is brought 
is immaterial. 

3. Not defeated by defendant's wrongfully dispossessing himself be- 
fore suit commenced. 130 Cal. 264; 151 Cal. 479. 



780. Replevin is an action at law, ex delicto, in personam as to damages, but 
in rem as to property when aided by provisional remedy, in Superior or 
Justice Court according to value of property and amount damages 
claimed, and transitory as to venue. 164 Cal. ?c>2\ 98 Cal. 660; Sees. 
526, ?22, 530, 51, 52, 65 ante. 



781. The action is maintained by the person entitled by contract or law to its 
possession — owner, his grantee, executor, administrator — against the 
person who has the possession thereof at time action is brought. 130 
Cal. 263; 119 Cal. 322; 133 Cal. 437; 24 Cal. App. 486; 7 Cal. App. 735. 

219 



782. Necessary allei^alions to state a cause of action in Replevin are — 

1. That plaintiff is the owner and entitled to possession of the prop- 
erty at time action commenced. 112 Cal. 174; 98 Cal. 660; 121 
Cal. 490; 125 Cal. 220. 

(a) Need not allc.^c kind nor source of title, nor how it was ac- 
quired. 

(b) Need not allege how entitled to possession. 

(c) Each article property must be described sufficient for iden- 
tification by officer. "l53 Cal. 234; 123 Cal. 77. 

2. Allege the value of the property. C.C. 3355, 3356. 

(a) If several items, give value of each separately. 

3. That defendant holds possession thereof without right or title. 

4. That defendant withholds possession from plaintiff against his 
will and consent. 

5. If original taking lawful, allege demand for possession and re- 
refusal. 

6. If original taking wrongful — no demand need be given or alleged. 

7. Allege damages suffered by detention, if any, and amount thereof. 

8. Allege facts showing special damages or for exemplary damages 
as in other cases. 24 Cal. App. 486; 94 Cal. 105; 4 Cal. App. 219; 
111 Cal. 180: Sec. 136 (8) ante. 



783. Action in Replevin may be changed by amendment to Conversion or 
Trespass. 

1. When it appears defendant has parted with possession before ac- 
tion commenced. 

2. In such case, amendment should be made before judgment. 

3. Sometimes proper relief mav be obtained without amendment. 94 
Cal. 105. 



784. The proper Provisional Remedy in aid of such action is "Claim and De- 
livery." 
1. It accomplishes all the purposes of anv such remedy. C.C. Sec. 
509; Sec. 314 ante. 



785. Defendant may present any defense legal or equitable by denial or new 
matter showing plaintiff is not entitled to possession, or lost right there- 
to, or action is barred. 154 Cal. 265. 

No counter-claim or cross-complaint is really necessary or available. 
142 Cal. 419. 
He may claim in his answer return of possession of property. 

1. When it is taken from him by Provisional Remedy, or otherwise 
by plaintiff. 

2. Judgment for return can be had only when defendant demands 
it in answer. Cross-complaint sustained in following — 22 Cal. 
App. 78; Sec. 229, 195, 203, 204 ante. 



786. Action is tried by jury, or if waived, by Court and judgment entered 
on verdict or findings, (Sec. 383 ante.) 
1. If for plaintiff, judgment must be in alternative, for possession or 
its value. 66 Cal. 486. 

220 



(a) Except when plaintiff has recovered possession during suit, 
then only for possession. 142 Cal. 310; 10 Cal. App. 728. 

2. If for defendant, judgment must be in same form for defendant. 

(a) When he demands return of property in his answer, and it 
has been taken from him. 

(b) When he retains property, judgment awards defendant pos- 
session or denies plaintiff relief. 

3. Judgment must also fix amount of damages proven. C.C.P. 667, 
627; 17 Cal. App. 684. 

Attorneys' fees not recoverable as damages. 130 Cal. 193. 



Conversion. 

787. Conversion, so called under Code Practice, is Common Law action of 
Trover, modified by Code Provisions, and occurs 

1. When a party takes proj)erty or deprives owner of it. 

(a) By claiming or using it as his own, or 

(b) By doing any act inconsistent with or repudiation of, own- 
er's title or right. 167 Cal. 372 ; 3 Cal. App. 387. 

2. ]Mere meddling with, or injuring property without any claim is 
not conversion. 54 Cal. 340; 102 Cal. 669; 134 Cal. 375; 166 Cal. 
143; 130 Cal. 267; 165 Cal. 112. 



788. Action is same in general characteristics as Replevin, exQppt only relief 
obtainable is damages which may consist, — (Sec. 779 ante.) 

1. Value of property at time of conversion with interest,. or 

(a) Highest market value between conversion and verdict with- 
out interest. 

2. Compensation for time and money expended in pursuit of property. 

3. Exemplarv damages under proper circumstances. C.C. 3294, 3336- 
3338; 161 Cal. 704; 162 Cal. 54; 153 Cal. 411. 

Not for attorney fees. 130 Cal. 235; 82 Pac. 265. 



789. As heretofore explained, owner may waive the tort and sue on implied 
contract in which case measure of damages somewhat different, and no 
exemplarv damages recoverable. C.C. 3300; 156 Cal. 711; 87 Cal. 15; 
89 Cal. 178; Sees! 523, 543 ante. 



790. Necessary allegations to state a cause of action jn conversion are sub- 
stantially same as in Replevin, except — (Sec. 782 ante.) 

1. Need not allege that defendant has or withholds possession. 

2. Must allege defendant has converted same to his ow^n use. 110 
Cal. 169. 

3. Must alleee items of expense incurred in pursuit of property, if 
claimed. 130 Cal. 267; 16 Cal. App. 527; 153 Cal. 411 ; 8 Cal. App. 
241 ; 110 Cal. 169; 126 Cal. 288; 142 Cal. 456. 



791. Defenses subject to same general rules — no counter-claims, or cross- 
complaint available. No provisional remedies available, except attach- 
ment against non-resident; or attachment generallv if suing on implied 
contract C.C.P. S37. Sees. 195, 203. 204, 304 ante! 

221 



797. Follovvins;- are instances of parties by and against whom, and property 
for whicli, actions niav be maintained on conversion. 162 Cal. 54. 



Trespass. 

798. An action may be maintained to recover damages for injuries to per- 
sonal property or rights however inflicted, though not taken or con- 
verted. 

1. Under Code practice it is not distinguished by any special name. 

2. When injury is wrongfully committed it is an action for damages 
on torts. Sec. 522, 524, 544 ante. 

3. When injury results from negligence, it is an action for negli- 
gence. Sec. 850 post. 

4. Sometimes referred to as Trespass, Trespass on Case or Tort, etc. 
38 Cyc. 994, 998, 1031. 



799. Such actions differ from Replevin, in not seeking possession, and from 
Conversion, as taking and conversion of property not involved. Other- 
wise of same general character and subject to same rules. Sees. 779, 
787, 780 ante. ^ 



800. The person whose possession or right to property has been injured, his 
grantee, successor, or legal representatives, may maintain the action 
against the wrong-doer and those aiding or acting with him. 105 Cal. 
680; 38 Cyc. 1036, 1038. 



801. Necessary allegations to state a cause of action therefor are — 

1. Ownership of title or possession, or interest in property. 

(a) Particularly describing it. 

2. Facts showing injury to it by defendant. 

3. Facts showing act of defendant in injuring it and such act unlaw- 
ful. 

4. The damages suffered by plaintiff and amount thereof. 

5 Facts showing any special damage and case for exemplarv dam- 
ages. 143 Cal. 50 ; 121 Cal. 216 ; 38 Cyc. 1078. 



802. Defendant may present usual defenses by denial or new matter — any 
justification, excuse, release, etc. 

No counter-claim or cross-complaint available, except as in all cases 
any which mav arise out of the tort or transaction. Sees. 195, 203, 204, 
213, 225 ante ; 38 Cyc. 1085. 



803. Slander of Title to personal property and damages to personal property 
through negligence will be hereafter explained. Lectures 48 and 49 ; 
Sees. 850, 841 post. 

222 



Quiet Title. 

804. (icncrally. the e(|uita1)lc action to (|iiiet title rclalcs and is confined to 
determining adverse claims to real propertv. and not to ])ersonal prop- 
erty. 109 Cal. 38 ; 32 Cyc. 1308 ; C.C.P. 738.' 



805. ( )rdinarily the title t(^ or rights in personal property may be determined 
or adequate redress be obtained, by other actions herctol(jrc explained. 

1. Action to determine adverse claims under ccjntracts explained in 
Lecture 41, Section 582 ante. 

2. Actions in rejilevin, conversion, trespass, hereinalxne mentioned. 

3. Also actions of cancellation of instruments explained in Lecture 
41, Sec. 556. 



806. Sometimes an action in ecjuity, in nature of (piiet title, or Dili of Peace 
may be maintained to settle the title or determine adverse claims to 
personal property made independent of contracts. 77 N.W. 882; Pom. 
Code Rem. Sec. 266 (Star. 369) ; 17 Enc. PI. and Prac. 289 and Notes; 
6 Am. and Eng-. Enc. Law (2d Ed.) 151 and notes; 166 Cal. 38; 163 
Cal. 385. 



807. Such actions when axailable are governed by same rules and pleadings 
as quiet title to real property hereinafter explained, and in addition, 
facts should be alleged and shown that other ordinary remedies are 
inadequate, and that it is a case peculiarly within equity jurisdiction. 
Sec. 827 post. 



223 



LECTURE 48. 

Injuries to Real Property. 

810. Injuries to Real property are the same as heretofore explained for per- 
sonal property. C.C. 28; Lecture 47, Sec. 776. 



8n. Various ap])r(>priate remedies are provided to redress such injuries: 

1. Ejectment — to recover possessicni with damas^es. Sec. 812 post. 

2. Forcible entry and unlawful detainer — statutory proceeding to 
recover possession. Sec. 819 post. 

3. Quiet title — to determine adverse claims. Sec. 827 post. 

4. Trespass — for damages for wilful or wrongful injury. Sec. 833 
post. 

5. Waste — damages for removing or injuring fixtures and land. Sec. 
834 post. 

6. Xegligence — damages for injuries inflicted through want of care. 
Sec'^^ 850 post. 

7. Slander of title — damages for injuries from publications against 
title. Sec. 841 post. 

8. Partition — division of real property among co-tenants. Sec. 843 

post- . 

9. Condemnation — taking property for public use under Emment 
Domain. Sec. 845 post. 



Ejectment. 

812. Ejectment is the common law action brought to recover 

1. The possession of specific real property and 

2. Damages for its detention — Mesne Profits. 164 Cal. 607; Pom. 
Rem. 36-41. 



813. It is an action at law. ex delicto, in rem as to possession, in personam 
as to damages, brought only in Superior Court, and local as to venue. 
Sec. 526, 522, 530, 51, 63 ante. 



814. It may be maintained by the person entitled to possession — against any 
person having possession, in all cases when possession is sought. 

1. ProDer remedv bv vendor against defaulting vendee in possession. 
Sec' 532 (5) ante.^ 

2. Not against mortgagee in possession, though debt barred. 166 
Cal. 717. 

3. Against Railroad to recover easement. 163 Cal. 710; 164 Cal. 205; 
15 Cal. App. 7. 



815. Necessary allegations to state a cause of action in ejectment are — 

1. Plaintifif is the owner and entitled to possession of real property. 

(a) Source, kind or chain of title not alleged. 166 Cal. 490. Sec. 
136 (8) ante. 

(b) Property must be described sufficient for identification by 
officer. C.C. P. 455 ; Sec. 136 (5) ante. 

224 



2. The defendant witlioiit right or title took possession ousting 
plaintiff. 

3. That defendant withholds possession from plaintilY a.gainst his 
consent. 

4. If defendant entered or holds unlawfully, no demand alleged. 

5. Otherwise allege demand and refusal. 19 Cal. App. 355. 

6. Allege damages, general, special and exemplary as in all torts. 
Sec. 544 ante; 164 Cal. 607; 24 Cal. App. 152; 13 Cal. App. 346; 
11 Cal. App. 497; 7 Cal. App. 599; 96 Cal. 312; 113 Cal. 536. 



816. Provisional Remedy of Injunction may be used to restrain waste or in- 
jury. Receiver cannot be appointed. Sec. 320, 331 ante. 



817. Defendant can make usual defenses by denial, and new matter — (Sec. 
195 ante.) 

1. Limitations, subsequently acquired title, etc. Sec. 203 ante. 

2. Facts showing any equitable defense — as contract of purchase 
performed. 150 Cal. 606, 258; 47 Cal. 146; Sec. 201 ante. 

3. Cannot defend for fraud, rescission, defective title, want of con- 
sideration, while holding possession. 

4. Cannot counter-claim or cross-complaint on a money demand. 
67 Cal. 589. 

(a) Except set oft' for improvement in some cases. C.C.P. 741. 

5. Alay by cross-complaint seek specific performance contract to con- 
vey same land. 24 Cal. App. 152; 4 Cal. App. 298; Sees. 213, 225 
ante. 



818. Action tried by jury, or if waived by Court. Sec. 383 ante. 

1. If plaintift' recovers possession, he may also recover damages for 
detention. 

2. If plaintiff does not recover possession, he cannot recover damages. 

(a) Except when defendant acquires title after commencement 
of action. 

3. Permanent improvement mav oft"set damages bv adverse holder 
under color title in good faith^ C.C.P. 740, 741 ; 164 Cal. 609. 



Forcible Entry or Detainer. Unlav^/ful Detainer. 
819. These are special summary proceedings provided in Code for obtaining 
possession of real property, and damages for its detention in following 
cases : 

1. Forcible entry — when any person enters upon real ])roperty — 

(a) By breaking open house, or by any kind of violence or 
terror. 

(b) After entering peaceably, turns out party in possession by 
force, threats or menacing conduct. 4 Cal. App. 382; 149 
Cal. 278. 

2. Forcible Detainer — when any person holds possession — 

(a) By force, menace or threats of violence, after entry peace- 
ably or otherwise. 7 Cal. App. 432. 

(b) After entry in night time, or during absence of occupant, 
and refusal to surrender upon 5 davs' demand. 20 Cal. App. 
549, 17 Cal. App. 254. 

225 



3. Ui)lawful detainer — when a tenant, less than hfc, eontinues in 
possession — 

(a) After expiration of his term without permission of landlord. 
12 Cal. App. 313 ; 4 Cal. App. 422. 

1. Tenancy at will being terminated by notice. (C.C. 789.) 

(b) After default in payment of rent and 3 days' notice to pay — 
without permission. 19 Cal. App. 355. 

(c) After default in any other covenant or condition and 3 days' 
notice to perform — 19 Cal. App. 518; 7 Cal. App. 679. 

1. Terms of tenancy from month to month changed by 
notice. (C.C. 827.)" 

(d) Committing waste, or assigning or subletting without per- 
mission terminates lease after 3 days' notice to quit. C.C.P. 
1159-1162. 



820. The action for either purpose or ground is a statutory legal action, 
ex delicto, in rem as to recovering possession, in personam as to dam- 
ages, local as to venue, all brought in Superior Court, except may be 
brought in Justice Court when rent is $25, or less per month, and dam- 
ages claimed $200.00 or less. Sees. 51, 52, 63, 522, 530 ante; C.C.P. 
1163, 76, 113. In a sense a civil action. 45 Cal. 495. 



821, The action is brought by the party entitled to possession — the party 
ousted by forcible entry or detainer, and landlord in unlawful detainer 
— against the person committing the act of forcible entry or detainer, 
or tenant guilty of unlawful detainer — and sub-tenants or others claim- 
ing under them and in possession. Otherwise parties governed by gen- 
eral rules. C.C.P. 1164, 1165. By Tenant in Common, 45 Cal. 495; 12 
Cal. App. 313. 



822. Necessary allegatix)ns to state a cause of action on either ground are : 
First: In actions for forcible entry or detainer. C.C.P. 1159, 1160. 

1. That plaintiff was in actual possession or entitled to possession 
at time entry or detainer. 

(a) Actual possession, if property occupied at time'. 138 Cal. 
421. 

(b) Entitled to possession if property vacant at time. 165 
Cal. 740. 

(c) Property described with reasonable certainty Sec. 136 
(5) ante; C.C.P. 1166, 455. 

2. Facts showing acts of forcible entry or detainer as above de- 
fined. 

(a) Allege circumstances of fraud, force or violence accom- 
panying entry or detainer. 

3. That defendant was in possession at commencement of action. 
9 Cal. App. 41. 

4. Allege damages suffered by entry or detainer, and amount 
thereof. Sec. 537 ante. 

Second: In actions for unlawful detainer. C.C.P. 1161. 

1. That plaintifif is owner and entitled to possession of premises — 
describing them. 

2. Making of lease, or agreement of tenancy, showing terms, cove- 
nants and conditions thereof. 9 Cal. App. 62. 

226 



3. Facts showing default by defendant in one (jr more items, — Sec. 
1161 C.C.P. 

(a) If non-payment of rent, amount thereof, and service of 
3 days' notice to pay or quit. 19 Cal. App. 355. 

(b) If after term, facts showing termination of term — no de- 
mand or notice necessary. 138 Cal. 78; 12 Cal. App. 313. 

(c) If breach of other covenant, allege covenant, its breach 
and 3 days' notice to perform. 

(d) If waste, assigning or sul)letting, allege facts thereof, and 
3 days' notice to quit. 

4. Allege damages and amount thereof. — Can recover all to date 
triaL 16 Cal.^ App. 441 ; Sec. 537 ante. 

Third : In all cases complaint must be verified even in Justice Court. 
C.C.P. 1166; 11 Cal. App. 310; 7 Cal. App. 679. 



823. Provisional Remedies are injunction to preserve property during ac- 
tion ; and in case of fraud, force, etc., arrest and bail mav be used. 
C.C.P. 1168. Sees. 299, 331 ante. 



824. Summons issued and served as in other cases except must in all cases 
direct defendant to appear in 3 days after service. C.C.P. 1167; Sees. 
152-157 ante. 



825. Defendant may present usual defenses by denial or new matter, except 

1. Questions of title or right to possession cannot be raised. 6 Cal. 
App. 558. 

2. Question of good faith not involved. 

3. No counter-claim or cross-complaint can be made. 63 Cal. 68 ; 
19 Cal. App. 527; 20 Cal. App. 552; 138 Cal. 415; 165 Cal. 740; 
23 Cal. App. 736; but see 151 Cal. 96; Sees. 195, 201-203, 213, 220 
ante. 



826. Action must be tried by jury, or if waived, by Court, and judgment in 
favor of plaintiiT must declare — 

1. Restitution and possession of premises. 

2. Damages for its detention 

(a) These damages may be trebled. 

(b) No damages can be awarded if plaintiff fails to recover 
possession. 

3. Forfeiture of lease in unlawful detainer. 

(a) Defendant given five days to pay rent to prevent forfeiture. 

(b) Defendant may be relieved from forfeiture on application 
within 30 days after judgment. C.C.P. 1171-1179, 735; C.C. 
3344-3346; Sec. 383 ante. 



Quiet Title. 

827. This equitable action, as modified by Code, may be brought 

1. To determine any adverse claim to real property, or any interest 
therein, — not to personal property. 109 Cal. 38; Sec. 806. 
(a) May quiet title acquired by prescription. 164 Cal. 250; 157 
Cal. 381. 

227 



2. To remove a cloud on title to real proi)erty, or any interest therein. 

3. In connection with it, possession may be recovered. (C.C.P. 380). 

4. Must recover on strength of own title — not weakness of adver- 
sary's. 24 Cal. App. 35; 165 Cal. 12; C.C.P. 738-751 ; 166 Cal. 235 
Water Rights; 155 Cal. 683 Leasehold. 

5. To determine Community Propertv. 166 Cal. 438; 162 Cal. 174; 
156 Cal. 703 ; 20 Cal. App. 346; 79 Cal. 443. 

6. By Creditor to set aside fraudulent conveyance is to remove 
cloud. 166 Cal. 546; 165 Cal. 762; 166 Cal. 557; 165 Cal. 549. 



828. The action is equitable as to determining title, at law as to determining 
possession, ex delicto in nature, in rem, brought only in Superior Court, 
and local as to venue. Sees. 51, 63, 526, 527, 530 ante ; 132 Cal. 691 ; 162 
Cal. 366, 382, 391 ; 159 Cal. 121 ; 157 Cal. 373 ; 1.50 Cal. 306; 79 Cal. 443; 
132 Cal. 691. 



829, The action is brought by owner of title or interest — or executor, admin- 
istrator, etc. — against the adverse claimant — executor, administrator, 
etc. 157 Cal. 373. 

Several persons may join to quiet title in Common Source. (C.C.P. 381.) 
May be brought against unknown owners. (C.C.P. 749) ; Pom. Rem. 
266-269. 

Equitable owner cannot maintain against holder legal title. 159 Cal. 
Z1; 151 Cal. 118; 157 Cal. 381 ; 155 Cal. 253; Sees. 95, i07, 119 ante. 



830. Necessary allegations to state a cause of action to quiet title are 

1. Allege plaintifif is the owner in fee (or other interest) in property. 
166 Cal. 490; 8 Cal. App. 684; 148 Cal. 650; Sec. 136 (8) ante. 

(a) Describe property sufficient for identification. Sec. 136 (5) 
ante. 

2. That defendant claims an interest adverse to plaintiff's title. 

(a) Need not allege nature or extent of claim. 

3. That defendant's claim is without right and unfounded. 163 Cal. 
24. 135; 162 Cal. 513: 158 Cal. 282; 157 Cal. 373, 381 ; 148 Cal. 562; 
150 Cal. 177; 168 Cal. 165. 



831. Defendant may present usual defense by denial or new matter — 
neither counter-claim or cross-complaint against plaintiff necessary. 

1. Cannot present one for money judgment. 

2. May, however, file cross complaint to quiet his title, or compel 
transfer title. 

3. ]\Iav cross-complaint to foreclose lien, or for Specific Performance. 
132" Cal. 432; 150 Cal. 208; 136 Pac. 500; 166 Cal. 47; 166 Cal. 427; 
22 Cal. App. 719; 24 Cal App. 35; 18 Cal. App. 683; 5 Cal. App. 
395 ; Sees. 195, 201-204, 213, 220, 229 ante. 



832. Question of possession must be tried by jury, unless waived, other 
questions by Court — and judgment must determine rights of all parties 
to the action. 166 Cal. 235 ; 132 Cal. 691 ; 18 Cal. App. 191 ; 12 Cal. App. 
44; Sees. 383. 385 ante. 

228 



Party's title not (|uieted as against liarred mortgaj^e until payment, but 
this does not api)ly to taxes when sale invalid. 166 Cal. 261, but see 
162 Cal. 366-391 ; 149 Cal. 617, nor against one not liable on debt secured 
by mortgage. 166 Cal. 720. 760, 24 Cal. App. 35. 

Reinihiirsing lK)na fide purchaser from fraudulent vendee. 163 Cal. 13.^. 



Trespass — Waste. 

833. Trespass is any wrongful or unlawful invasion of real property or in- 
terest therein resulting in injury. 53 Cal. 141 ; 117 Cal. 305; 9 Cal. App. 
318; 162 Cal. 1 ; l.=^3 Cal. 118; 151 Cal. 778; 38 Cyc. 994, 1004. 
Damages by city in changing grade street. 162 Cal. 714. 



834. Waste is any act by a tenant for years or life which inflicts an injury 
to the freehold or inheritance, as removing or injuring trees, fixtures, 
or part of substance. 

Owner in possession mav commit waste bv doing such acts to injurv 
of a lien. 40 Cyc. 497 ; C^C.P. 733, 706 ; 64 Cal. 134. 



835. They are actions at law when brought to recover damages only, in per- 
sonam ex delicto, in Superior or Justice Court according to amount de- 
manded, and transitorv as to venue. Sees. 51, 52, 65, 522, 526, 530 ante. 



836. Both actions may be maintained by the party whose interest or title 
is injured against the party doing the injury — their executors, admin- 
istrators, etc. 161 Cal. 689. 
1. For waste, party having a revertable title can enjoin but not sue 
for damages. C.C. 818.^840. 819. 826, 2929; C.C.P. 732, 1583, 1584; 
150 Cal. .=^0; 38 Cvc. 1036. 1038. 



837. Necessary allegations to state a cause of action for trespass or waste 
are 

1. That plaintifi^ is owner of title or some interest therein — describ- 
ing propertv and interest — possession or right of possession. Sec. 
136 (8) ante. 

2. Facts showing acts committed by defendant as trespass or w-aste. 

3. Facts showing the injury resulting to plaintiff's interests by acts 
so committed. 153 Cal. 677. 

4. Damages suft'ered from such acts and amount to date trial: (150 
Cal. 624.) 

5. Facts showing special damages, or for exemplary damages. Sec. 
544 ante. 

(a) Acts must be willful and malicious to justify exemplary 
damages. 

(b) In waste, damages are trebled if willful and malicious. 72 
Cal. 371 ; 9 Cal. App. 318 : 163 Cal. 782 ; 161 Cal. 689 ; 38 Cyc. 
1078; 22 Enc. PI. and Pr. 1110; 105 Cal. 680: 121 Cal. 216. 



838. Provisional Remedv of injunction mav be used to enjoin repeated tres- 
passes and for waste. C.C.P. 745, 525; 4 Cal. App. 542; 150 Cal. 39; 
Sec. 331 ante. 

229 



839. Defendant nui}- present usual defenses by denial or new matter show- 
ing plaintiff has no right to recover or defendant not liable. 
No counter-claim or cross-complaint is available. Sees. 195, 203, 204, 
213, 225 ante; 38 Cyc. 1085. 



840. Action must be tried by jury, or if wai\ed by Court, and judgment is 
for damages only. Sec. 383 ante. 



Slander of Title. 

841. Slander of title occurs when any person falsely and maliciously dispar- 
ages and reflects upon another's title to or interest in real or personal 
property to his injury by any communication published or spoken. 90 
Cal. 537; 25 Cyc. 558. 



842. Action therefor is ex delicto, of same general character and governed 
bv same general rules as libel or slander of person, or trespass or other 
tort. 90 Cal. 538; 25 Am. St. Rep. 158 Note; 13 L.R.A. 707 Note; 131 
Cal. 618; Sees. 7^7. 51, 52, 65. 383, 522, 526. 530 ante: 13 Enc. PI. and 
Pr. 97. 



Partition. 

843. This is an action provided by Code as a special proceeding by which 
one co-tenant in real property may procure it to be divided among the 
owners, according to their respective interests. C.C.P. 752. Between 
owner land and timber thereon. 163 Cal. 758. 
Homestead cannot be partitioned. 20 Cal. App. 84. 
Oyster bed cannot be partitioned. 150 Cal. 392. 



844. The Code specially provides who must be made parties, what plead- 
ings must contain and w^hat proceedings may be had, and examination 
of Code will serve same purpose as setting out here. 155 Cal. 185; 10 
Cal. App. 304; C.C.P. 753-801; Pom. Rem. 270-274; 153 Cal. 297; 150 
Cal. 734, 762; accounting on. 168 Cal. 369. 



Condemnation. 

845. Under power of Eminent Domain, the State or any agency authorized 
by it may by action take and condemn private property for public use 
upon paying the value thereof as determined in the action. C.C.P. 1237- 
1240; 162 Cal. 1 ; by Foreign Corporation, 167 Cal. 147. 



846. The Code in this case also defines who bring action, what property may 
be condemned, for what purposes, what pleadings shall contain and 
what proceedings may be taken, and not necessarv to here repeat. 
C.C.P. 1241-1264; 166 Cal. 749; 164 Cal. 221 ; 167 Cal.' 147: 24 Cal. App. 
166, 265 ; 19 Cal. App. 648. 

230 



LECTURE 49. 

Negligence. 

850. Actional)le nei^ligence is the failure to exercise due care in performing 
or omitting to perform a duty which one owes to another, resulting in 
injury or damage to such other's person or property. 18 Cal. App. 473. 

1. Gross negligence — want of slie-ht care, or absence of care. 161 
Cal. 297; 159 Cal. 769. 

2. Slight negligence — want of great care. 

3. "Ordinary" negligence — want of ordinary care, such as a man 
under ordinary circumstances would use in his own affairs. 163 
Cal. 60: 160 Cal. 48. 

4. Criminal negligence — is the same as Gross negligence. 107 Cal. 
324; 158 Cal! 596; 95 Cal. 291 ; 118 Cal. 61 ; 29 Cyc. 415-423. 



851. By "Due Care" is meant such care as may be required, either 

1. By express terms of contract or implied therein by law. 10 Cal. 
App. 746. 

2. By provisions of general law, special statute, or ordinance govern- 
ing conduct of persons. 

3. Degree Care required of person in peril. 166 Cal. 457; 158 Cal. 
596; 9 Cal. App. 718. 

4. Knowledge or forgetful of danger. 166 Cal. 482; 167 Cal. 11 ; 162 
Cal. 327, 735; 16fCal. 334, 425, 475. 

5. Extraordinary care required in use of fire arms. 156 Cal. 636; 
29 Cvc. 426-429. 



852. Intent is not an element of negligence. An act done or omitted through 
intention, wilfullness, malice, or wantonness alone, is not negligence. 
It excludes the element of want of care. 18 Cal. App. 468; 29 Cyc. 421, 
424. 



853. Three essential elements must unite to give rise to an action on negli- 
gence. 

1. Existence of a duty on defendant to protect plaintiff from injury. 

2. Failure of defendant to perform that duty. 

3. Injury to plaintiff' from such failure of defendant. 29 Cvc. 419; 80 
Cal. .^65: 86 Cal. 374; 110 Cal. 339; 119 Cal. 637; 24 Am. St. 333. 



854. This "duty on defendant to protect plaintiff" may exist either 

1. By contract in terms expressed or implied therein bv law\ 10 Cal. 
App. 746; 166 Cal. 173. 

(a) Or implied by law from the relation of the persons, or 

2. Imposed by general law, special statute or ordinance governing 
conduct of persons. 160 Cal. 497 ; 159 Cal. 494 ; Sec. 524 ante. 

(a) Requiring certain acts to be done, or 

(b) Prohibiting the performance of certain acts. 

3. Mav exist both bv contract, and imposed bv law. 165 Cal. 347; 
164 Cal. 564; 161 Cal. 29; 29 Cyc. 424. 

231 



855. A contract creates only such duties as are therein expressed, or implied 
therein by law by one party thereto to another party, or their privies, 
or to any person for whose l:)enefit it was expressly made, hence 

1. Stranger to contract cannot sue for nci;ligent breach thereof 
though injured. 110 Cal. 343. 

2. A party thereto cannot sue for negligence in anv duty not created 
thereby. 166 Cal. 210, 405 ; 22 Cal. App. 7?. 

3. A party properly performing same is not liable for any injury 
suffered by anv other partv thereto by such proper performance. 
98 Cal. 583; 154 Cal. 594; l'58 Cal. 556; 161 Cal. 714; 10 Cal. App. 
746, 785. 



856. The law implies various duties and degrees of care between parties in 
certain contractual relations bv \'irtue of the contracts between them. 
As 

1. Carrier and passenger — for reward, great or utmost care (159 Cal. 
769; 158 Cal. 412;'l52 Cal. 406), gratuitous, ordinary care. C.C. 
2096, 2100: 

2. Carrier and shijjper — for reward, ordinarv ; gratuitous, slight care. 
C.C. 2114. 

3. Carrier of messages — for reward, great or utmost care. C.C. 2162. 

4. Bailor and bailee — for hire, ordinary, gratuitous, slight care. 
C.C. 1852, 1845. Citations will refer to other instances. 

Master and Servant. 166 Cal. 210, 354; 165 Cal. 347; 164 Cal. 488; 

167 Cal. 11, 103, 377, 487, 500. 

163 Cal. 60, 118, 392; 162 Cal. 74; 161 Cal. 93, 425; 159 Cal. 89; 

158 Cal. 284. 359; 156 Cal. 492. 691, 752; 155 Cal. 500; 168 Cal. 

173. 183. 

To Trespassers. 159 Cal. 599; vehicles on street, 168 Cal. 43. 



857. The law, by general rules, special statutes, or ordinances of municipali- 
ties under police power, prescribe various duties to be performed or 
prohibit the performance of various acts, by persons in their various 
relations and situations. Sec. 524 ante. 

1. Many Penal statutes or ordinances. 23 Cal. App. 537; 24 Cal. 
App. 133, 683; 11 Cal. App. 79. 

(a) Forbidding all persons from doing certain acts. 159 Cal. 368. 

(b) Prescribing the manner in which certain acts may be done. 
166 Cal. 269. 

2. General rules of conduct between persons. 

(a) Every person is bound to abstain from injuring the person 
or property or rights of another. 

(b) One must so use his own rights as not to infringe upon 
rights of another. 1 C.J. 965 ; 7 Cal. App. 267. 

(c) Every one is liable for any injury done another by want of 
ordinary care in management of his property or person. 
C.C. 1708, 1714, 3512-3543; 166 Cal. 210; 167 Cal. 126; 162 
Cal. 531. 

Application to Trespassers. 115 Cal. 345. 

Duties of persons — on street. 167 Cal. 683 ; 161 Cal. 53 ; 168 

Cal. 43, 473, 564. 

Objects attractive to children. 161 Cal. 176; 153 Cal. 571. 

232 



858. Only such duties as are thus implied or imposed by law must be per- 
formed by the person to the other bearinj^ the relation, or under the 
situation or circumstances s])ecified in the laws g^overnini:^ same. 166 
Cal. 210; 159Cal. 494. 

1. Such duties mav in some cases l)e modified l)y ex])ress contract. 

C.C. 3513.' 

2. Rut no such contract can exempt one from a nej^Hsent violation cjf 

law. C.C. 1668; 163 Cal. 314; 167 Cal. 112; 161 Cal. 297; 159 Cal. 
769. 



859. The second element "Failure of defendant to perform that duty" in- 
volves determination of two questions, after considering several items. 

1. Question of fact — whether a particular act has been performed or 
omitted. 163 Cal. 663 ; 162 Cal. 36; 161 Cal. 425 ; 158 Cal. 596; 156 
Cal. 636, 752. 

2. Question of law — whether performance or omission of that act 
was a breach of legal dutv. 163 Cal. 392; 162 Cal. Z27 : 157 Cal. 
348. 

fa) Ascertain from contract or law what duty w^as owing. 

(b) Find what knowledge or means of knowledge of such duty 
by parties. 95 Cal. 291 ; 155 Cal. 620. 

(c) Consider mental responsibilitv of partv owing the dutv. 150 
Cal. 398. 

(d) Facts and circumstances showing the act, how committed 
• or omitted, relation, situation and condition of parties. 107 

Cal. 324; 167 Cal. 199; 161 Cal. 29. 53. 176; 160 Cal. 237; 
23 Cal. App. 242; 20 Cal. App. 751; 15 Cal. App. 127; 152 
Cal. 604 ; 148 Cal. 208. 



860. In determining such elements, certain rules are to be considered. 

1. The performance or omission of some acts as to certain duties is 
negligence per se. ' 166 Cal. 269; 163 Cal. 663; 161 Cal. 29. 53; 24 
Cal. App. 683; 23 Cal. App. 537; 168 Cal. 375; 159 Cal. 368. 

(a) That is, follows as matter of law from such act itself. 

2. From the happening of some events, negligence is presumed. 156 

Cal. 170. 
(a) Under the doctrine of res ipsa loquitur. 167 Cal. 245 ; 162 
Cal. 531; 157 Cal. 248; 20 Cal. App. 184; 152 Cal. 406. 

3. But generally, negligence must be established by evidence of all 

circumstances. 148 Cal. 208. 

4. In some cases negligence of one person is imputed bv law to 
another. 166 Cal. 457 ; 165 Cal. 753 ; 158 Cal. 514. 



861. The last element "Injury to plaintiff from such failure of defendant" 
also involves the consideration of a variety of rules. 
1. The injury must be real and substantial to a vested right. 

(a) The law does not regard trifles — de minimus non curat lex. 
C.C. 3533. 

(b) Though nominal damages may be awarded. Sees. 536, ^Zl 
ante. 

233 



2. The detriment must be "proximately" caused by the act affecting 
the duty charged. 166 Cal. 354; 167 "Cal. 126; 163 Cal. 60; 157 Cal. 
599; 6 Cal. App. 184. 

(a) Direct, certain, inuncdiate, consequence — not remote or spec- 
ulative. Sec. 537 ante : 168 Cal. 58. 

(b) Resulting from the act itself — not from some intervening, 
independent cause. 163 Cal. 398; 11 Cal. App. 106. 

(c) Not from unavoidable accident — act of God or Superhuman 
cause. 23 Cal. App. 231. 

3. It must not be with consent or acquiescence of party injured. 95 
Cal. 541. 

4. It must not be result of contributing negligence of party injured. 

(a) Except when defendant, with notice, thereof, might have 
avoided injur}^ under "Last Chance Rule." 165 Cal. 753; 
167 Cal. 199; 163 Cal. 663; 159 Cal. 368; 22 Cal. App. 737; 
152 Cal. 437. 

5. It must not be consequence of defendant's lawfully exercising a 
right he possessed, etc. 15 Cal. App. 378; 154 Cal. 581 ; 153 Cal. 
118; 166 Cal. 457; 164 Cal. 363: 167 Cal. 11. 506, 683; 162 Cal. 74, 
327, 735; 158 Cal. 514, 596. 



862. In the light of these general rules, the characteristics of an action for 
negligence are 

1. It is an action at law, in personam, for compensatory relief alone. 

2. Brought in the Superior or Justice Court, according to amount of 
damages demanded. 

3. Transitory as to venue. Sees. 51, 52, 65, 522, 526, 530 ante. 



863. Such action is ex contractu or ex delicto according to nature of duty 
and act involved. 

1. When duty and breach relates to contract, express or implied, 
alone — ex contractu. Sec. 521 ante. 

2. When duty and breach relates to obligation imposed by law 
alone — ex delicto. Sec. 522 ante. 

3. When duty and breach relate to obligation arising from contract 
and imposed by law — either. 

(a) In that case plaintiff must elect which to pursue — may be 
either. Sec. 523 ante. 

4. Character of action must be determined from allegations and 
prayer of complaint. Sec. 523 ante; 166 Cal. 36; 12 Cal. App. 641. 



864. No provisional remedy is available to aid the action for damages. In 
some cases an injunction may be sought to prevent continuance of neg- 
ligent acts or to undo what has been done to prevent continuing injury. 
Sec. 331 ante. 



865. Necessary allegations to state a cause of action for negligence are : 

1. That plaintiff was the owner or had some interest in property in- 
jured describing it. 9 Cal. App. 318; Sec. 136 (5) (8)_ ante, 
(a) Not necessary as to body, or personal rights — in personal 
injury cases. 164 Cal. 188. 

234 



Facts showing defendant's duty to plaintiff at time of injury. 

(a) If by contract — allege contract as in other cases showing the 
duty. Sec. 542 ante. 

(b) If by law — allege facts showing a relation or situation from 
which the law implies or im])oscs a duty. 20 Cal. App. 264; 
Sees. 524, 856 ante. 

1. Should not allege the law or the legal duty — judicial 
notice sui)plies it. 166 Cal. 354; 154 Cal. 663; not ordi- 
nance, 154 Cal. 669; 18 Cal. App. 415; 24 Cal. App. 
133 ; 19 Cal. App. 100; 23 Cal. App. 537, 571. 

Facts showing act done or omitted bv defendant in breach of that 
duty. 153 Cal. 571 ; 6 Cal. App. 184; 7 Cal. App. 116. 

(a) Specify what acts were done or omitted. 

(b) If done, specify by what means and in what manner done. 

(c) If omitted, specify the circumstances and surroundings afifect- 
ing it. 161 Cal. 403 ; 8 Cal. App. 588. 

Facts showing defendant was negligent or did not exercise due 
care in the act. 20 Cal. App. 264;" 153 Cal. 516; 154 Cal. 573. 

(a) May allege generally that defendant negligently performed 
or omitted act. 159 Cal. 368 ; 157 Cal. 599; 23 Cal. App. 571 ; 
20 Cal. App. 264; 14 Cal. App. 410; 102 Cal. 147. 

(b) But must specify the acts or omissions alleged to be negli- 
gent. 

Facts showing the injury or damage and amount thereof. 80 Cal. 
574. 

(a) Should specify character and extent of the injuries and what 
was injured. 156 Cal. 587; 24 Cal. App. 133; 3 Cal. App. 28. 

(b) Must specially allege any special damages as in other cases. 
157 Cal. 240. " 

(c) In cases ex delicto— may allege facts showing grounds for 
exemplary damages or penalty. Sec. 544 ante ; Pom. Rem. 
p. 681 ; 162 Cal. 74; 161 Cal. 649; 160 Cal. 237; 159 Cal. 270; 
157 Cal. 248; 156 Cal. 691; 155 Cal. 500; 12 Cal. App. 739; 
14 Enc. PI. and Prac. 331 ; 29 Cvc. 565-579. 



866. The defenses and counter-claims ayailable to defendant are — 

1. By denial of allegations of complaint. Sec. 195 ante. 

(a) Dispute plaintiff's right, or ownership of property. 

(b) Defendant's duty, relation or situation, and negligence. 

(c) Acts performed or omitted, the injury and damages. 

2. Bv new matter^besides the usual pleas in bar, etc. Sees. 203, 
204 ante. 

(a) Plaintiff's consent or contributory negligence — not in general 
terms, but facts showing (166 Cal. 466; 160 Cal. 237; 158 
Cal. 514; 153 Cal. 571 ; 5 Cal. App. 12; 168 Cal. 500. 

(b) Plaintiff's assumption of risk. 16 Cal. 93. 

(c) Justification of defendant's acts — as necessary to protect him- 
self or rights or lawful exercise of rights, etc. 

(d) Circumstances in mitigation of damages, etc. 

3. Defendant may counter-claim damages for plaintiff's negligence 
in same transaction. Sees. 213, 225 ante; Pom. Rem. p. 817 note; 
29 Cyc. 580-586. 

235 



867. The parties by and against win mi the action for neghgence may be 
maintained are 

1. The plaintiff — the person whose body, property or right is injured. 

(a) If property — his executor, administrator or successor in 
interest. 

(b) If person or body — those authorized by statute heretofore 
explained. 104 Cal. 188, 564 ; 159 Cal. 270, 494 ; 158 Cal. 412 ; 
24 Cal. App. 22. 

2. The defendant — the person committing negligent act or omission, 
or contributing thereto. 

(a) If several, all if contract ; any or all if ex delicto. 

(b) Also any superior liable for acts of such person. 

(c) Or the person to whom is imputed the negligence of another. 
157 Cal. 182; 5 Stand. Proc. 385; Sees. 83, 84, 107, 109, 101 
ante. 



868. The action must be tried by jury, or if waived, by the Court, and the 
verdict or findings and judgment must determine the facts and amount 
of damages recovered. Sec. 383 ante. 



236 



LECTURE 50. 

Permanent Injunction — Certiorari — Prohibition — Nuisance. 

872. By "Permanent Injunction" is a judgment in an action entered after 
trial on the merits and which as the final relief restrains the defendant 
from performinjT^ or requiring' defendant to ])erf(irm, certain acts therein 
specified for all time or indefinitely. 

1. Distinguished from Provisional, heretofore explained in Lecture 
No. 26 (Sees. 328-337 ante.) 

2. It may be Preventive — restraining doing of certain acts. Sec. 328 
ante. 

3. Mandatory — re(|uiring doing of certain acts. 1.t5 Cal. 15; Sec. 329 
ante, 876 post; C.C. 3366, 336S, 3274; 22 Cvc. 740; 10 Enc. PI. and 
Prac. 869. 



873. A Permanent Injunction can never be granted ftir the following pur- 
poses : 

1. To stay proceedings in a Court of the United States. 

2. To stay proceedings in another State upon a judgment of a Court 
of that State. 

3. To prevent the execution of a public statute bv officers of law for 
the public benefit. 159 Cal. 516; 148 Cal. 368. ^ 

4. To prevent the exercise of a public or private office in lawful 
manner by person in possession. 160 Cal. 680. 

5. To prevent a legislative act by a municipal corporation. 

6. To enforce a penal law or a penaltv or forfeiture. C.C. P. 526; C.C. 
3423, 3369; Sec. 332 ante; 139 Cal.'469. 

May prevent sale under void judgment. 165 Cal. 423. 449. 
May prevent action in Justice Court. -113 Cal. 196. 
May prevent enforcement of Municipal Ordinance. 167 Cal. 434; 
162 Cal. 648; 158 Cal. 430. 



874. Such Injunction may be granted to prevent the breach of a contract, 
when 

1. The contract may be specifically enforced. 3 Pom. Eq. Jur. 1341. 

2. Pecuniary compensation would not afford adequate relief. 

3. It would be extremely difficult to ascertain amount of damages 
which would afford adequate relief. 

4. The restraint is necessary to prevent a multiplicity oi judicial 
proceedings, or 

5. The obligation arises from a trust. C.C. P. 526; C.C. 3422; 23 Cal. 
App. 388 ; 16 Cal. App. 321. 

6. To restrain sale goods below minimum prices fixed by manufac- 
turer. 164 Cal. 355. 

7. To enforce restrictive covenants in deed. 12 Cal. App. 383; 149 
Cal. 297; 136 Cal. 36; 28 L.N.S. 706. 



875. Such injunction may 1)e granted to prevent the commission of wrongs 
or injuries in nature of torts in any of last six instances above mentioned. 
Sec. 874 ante. 

The following are instances when granted ; 

To prevent repeated trespasses. 166 Cal. 484; 156 Cal. 70; 22 Cal. App. 
519; 154 Cal. 299, 581 ; 114 Cal. 386; 119 Cal. 320. 

237 



Maintenance of nuisance. C.C. 3369; C.C.P. 731. 

Waste or injury after sale on execution and before conveyance. 15 Cal. 

App. 7; C.C.P. 745, 706. 

By Taxpayer to restrain illegal expenditures. C.C.P. 526a; 165 Cal. 

576. 

To prevent other waste on real property. 150 Cal. 39. 

To prevent unfair competition in use of name. 165 Cal. 89; 158 Cal. 

252; 21 Cal. App. 567; 148 Cal. 142; 150 Cal. 180; 168 Cal. 289. 

To prevent employee from disclosing trade secrets. 165 Cal. 95. 

To restrain sale property under illegal tax. 167 Cal. 580; or street 

assessment. 162 Cal. 422. 

To restrain changing grade street until damages paid. 160 Cal. 288. 

To restrain boycotting and picketing. 156 Cal. 70; 154 Cal. 581; 149 

Cal. 429; 153 Cal. 433. 

To prevent sale of property under execution. 154 Cal. 17, 440; 4 Cal. 

App. 585, 610. 

To prevent wrongful diversion of water. 150 Cal. 327; 153 Cal. 86; 149 

Cal. 531. 



876. In following citations are instances wherein mandatory injunctions 
were granted or denied: 145 Cal. 666; 167 Cal. 471 ; 104 Cal. 248; Sec. 
899 post; 36 L.N.S. 402; 20 L.R.A. 161 ; 22 Cyc. 742, 852, 874; 10 Enc. 
PI. and Prac. 879. 



877. An action for such injunction is in equity, in personam, only in Superior 
Court, and transitory as to venue, and brought by and against following 
parties: (155 Cal. 59; Sees. 51, 65, 527, 530 ante.) 

1. Plaintiff — person whose rights are threatened with injury or party 
to contract. 

2. Defendant — person who is injuring or threatens to injure others' 
rights. 

3. Parties may be joined who have a united interest in the protection, 
or unite in committing or threats to commit the injury, though 
their interests be several or act separately. Sec. 107 ante. ; 87 Cal. 
430; 10 Enc. PI. and Prac. 892. 



878. Necessary allegations to state a cause of action for injunction are: 

1. That plaintifT is the owner or in possession of property or right 
which may be protected. 154 Cal. 785 ; Sec. 136 ante. 

(a) Or is in a personal situation which may be protected. 

(b) Particularly describe the property, right or situation, and 
plaintiff's relation thereto. 

2. Facts showing acts of defendant being committed or threatened or 
about to be committed. 

(a) Specify the acts, manner committed, or threatened, in rela- 
tion to property right or situation affected. 124 Cal. 80, 99. 

3. Facts showing effect of acts in actual or threatened injury to 
property right or situation. 5 Cal. App. 83. 

4. Facts showing such injury would be or are irreparable — cannot be 
compensated in damages. 150 Cal. 277 ; 2 Cal. App. 720. 

5. Facts showing plaintiff has no adequate remedy at law. Sec. 528 
ante. 

6. Facts showing damages and amount thereof already inflicted. 19 
Cal. 354 ; 16 Cal. App. 321 ; 150 Cal. 171. 

238 



879. Defendant may by denial or new matter present any defenses legal or 
equitable which would defeat plaintiff's recovery. Sees. 195, 201-204 
ante. 
By Cross-complaint may 

1. Quiet title or enjoin plaintiff from acts. 

2. Specific Performance of contract sought to be enjoined. 

3. Enforce any right sought to be restrained, except. 

4. Cannot present claim for money judgment. Sees. 213, 225 ante; 
166 Cal. 484; Laches, 162 Cal. 141. 



880. Action being in equity tried by the Court — no jury can be demanded. 
Only Provisional Remedy available is injunction. Sees. 331, 385 ante. 
Though judgment is for defendant, injunction may issue to preserve 
status quo on appeal. 159 Cal. 516; 157 Cal. 781. 
Alay demand jur}' on question of damages. 91 Cal. 385; Sec. 383 ante. 



Certiorari or Writ of Review. 
881. This writ is to inquire into and determine whether an inferior tribunal, 
board or officer to whom it is directed, in exercising judicial functions, 
has acted within its jurisdiction or has regularly pursued its authority. 
C.C.P. 1074, 1068; 166 Cal. 648; 148 Cal. 77Z; 160 Cal. 589; 159 Cal. 474; 
156 Cal. 82: 150 Cal. 147. 



882. It is issued by Supreme Court, District Court of Appeal or Superior 
Court in same manner as heretofore explained for mandamus. 167 Cal. 
792; Sees. 605, 49-51 ante. 



883. It is issued only to an Inferior Court, Board or Officer exercising judicial 
functions. 

1. After such Court, Board or Officer has acted. 

2. To determine if it or he has acted within the jurisdiction granted. 
149 Cal. 266; 168 Cal. 223. 

3. Will not review judicial errors committed in exercise of jurisdic- 
tion. 162 Cal. 281 ; 12 Cal. App. 327, 421 ; 11 Cal. App. 643; 148 
Cal. JIZ. 

4. ^Vill not review legislative, nor ministerial nor executive acts. 
C.C.P. 1068. 

5. Review^ing acts of Railroad Commission. 166 Cal. 640, 741 ; 167 
Cal. 666; 168 Cal. 295. 

6. Acts of Board Supervisors in forming Irrigation District. 162 
Cal. 14. 

7. Acts City Trustees removing elective officer. 161 Cal. 197. 

8. Will not be granted when party has remedv by appeal or other- 
wise. 153 Cal. 753 ; 7 Cal. App. 717. 



884. The writ is issued against a tribunal. Board or officer acting judicially 
only on application of party "beneficially" interested. 

1. Such party must be a party to any action or proceeding attacked, or 

2. A person affected by proceedings different from general commun- 
ity. 144 Cal. 501. 510; 11 Cal. App. 439: 7 Cal. App. 717: 8 Cal. 
App. 47. 

239 



885, The ap]:)lication is made by a ^■erif^C(l petition in writing — in form and 
substancea verified conii)laint — showing 

1. Title of Court, cause, etc.. as in any complaint. 

2. Applicant is named ])]aintifT and trilnmal, board or officer de- 
fendant. 

3. Show official title n\ tri])unal. 1)();ir(l or officer defendant. 

4. Facts showing nature proceedings and act complained of. 

(a) How such act injures plaintiff. 

5. Facts showing defendant in so acting exceeded its jurisdiction, or 
did not have jurisdiction. 

6. Facts showing plaintiff has no adequate remedy at law — equitable 
remedy does not bar. 

7. If made to Higher Courts, state reasons for not first applying 
to Superior Court. 



886. Upon filing the petition, it is presented to Court, and following proceed- 
ings are had : 

1. Court may order writ to issue immediately without notice. 

2. Require plaintiff' to give defendants notice in writing of the appli- 
cation. 

(a) Notice specifying time and place of application, and copy of 
petition served with notice. 

3. Or Court may issue an order for defendants to show cause at time 
and place fixed. 12 Cal. App. 327. 

(a) Copy of petition being served with order to show cause. 
C.C.P. 1069. 



887. In case notice of application is given or order to show cause served, 
defendant at time of hearing may show cause 

1. By demurrer or answer thereto, or by both. 

2. Demurrer may be on same grounds as to complaint. 

3. Answer may contain any matter tending to defeat issuance of writ. 

(a) Cannot go into merits, because they arise on the return only. 



888. After writ is issued, either after or without notice, only answer made is 

1. The return containing transcript of proceedings attacked. 

(a) If incomplete, additional return may be ordered. C.C.P. 1075. 

2. When wTit is issued without notice, demurrer to petition may be 
filed and presented. 



889. The writ is directed to the tribunal. Board or officer and contains, 

1. Commands party to certify fully to the Court at the time specified 
a transcript of proceedings. 

2. Restraining further proceedings in matter reviewed. 

(a) This restraint mav be inserted or omitted in Court's discre- 
tion. C.C.P. 107i; 1072. 



890. The action complained of, when writ issued, will be reviewed. 

1. Only on the return and transcript of proceedings attacked. 

2. No evidence is heard, other than appearing in transcript, except 
when necessary to show a fact concerning which evidence is not 
in record. 

240 



891. The jiul.<2:nient after hearing the return may either 

1. Affirm or annul or modify the proceedings attacked. 

2. Copy thereof must be transmitted to defendant whose proceedings 
are afifected therel)y. C.C.P. 1076. 



Prohibition. 

892. This writ is the counterpart of writ of mandamus — 

1. Mandamus compels action. C.C.P. 1085 ; Sec. 604 ante. 
1. Pn)hil)ition restrains action. C.C.P. 1102; 159 Cal. 474. 

893. Writ of Prohibition is issued to arrest or restrain j^roceedings, by any 
tribunal, board or officer, exercising functions judicial or ministerial, 
which such proceedings are without or in excess of jurisdiction of 
tribunal, board or officer. 166 Cal. 345 ; 11 Cal. App. 1. 

1. Certiorari^ — acts after proceedings are taken and reviews. Sec. 
883 ante. 

2. Prohibition — acts before proceedings are taken and prevents. 
C.C.P. 1102 : 139 Cal. 469 ; 12 Cal. App. 335 ; 150 Cal. 6; 149 Cal. 98, 
137; 152 Cal. 289: 153 Cal. 38 : 6 Cal. App. 242. 



894. The writ is issued upon verified petition of the party "beneficially" in- 
terested by the same courts, in same manner, by the same proceedings 
as certiorari. Sees. 881-891 ante. 

The following citations present instances when issued or denied : C.C.P. 
1103-1105 ; 12 Cal. App. 335 ; 11 Cal. App. 213 : 149 Cal. 98. 



Nuisance. 

895. A nuisance is anything which interferes with comfortable enjoyment of 
life or property, as 

1. Injurious to health, or (7 Cal. App. 760) 

2. Indecent or offensive to the senses, or (9 Cal. App. 77Z) 

3. Obstruction to free use of property. 

4. Unlawfully obstructs free passage or use in customary manner, 

(a) Of anv navigable lake, river, bay, stream, canal, or basin. 

(b) Of anv public park, square, street or highway. 163 Cal. 211 ; 
154 Cal. 402. 

5 Nothing done under express authoritv of a statute is a nuisance. 
C.C. 3479, 3482; 163 Cal. 84; 157 Cal. 168; 21 Cal. App. 312. 



896. Such nuisance may be public or private — 

1. Public — one which affects at same time 

(a) An entire community of neighborhood, or 

(b) Any considerable number of persons, although efifect upon 
individuals is unequal. 

2. All others are private. 2 Cal. App. 261: 7 Cal. App. Z27 \ C.C.P. 
3480, 3481. 

241 



897. A public or private nuisance may be abated without civil action. 

1. Public — without action 

(a) By any public body or officer authorized by law. 154 Cal. 
580. 

(b) Also by proper criminal proceedings provided for that pur- 
pose. 

2. Public or private— by individuals specially injured thereby, 

(a) By removing or destroying the thing causing it. 

(b) When it can be done without committing breach of peace or 
doing unnecessary injury. C.C. 3491, 3494, 3495, 3501, 3502, 
3503^ 



898. A public nuisance may be abated by civil action to enjoin its mainte- 
nance. 

1. By the District Attorney of a County, or City Attorney of a Citv. 
150 Cal. 195. 

2. They must do so, on order of Legislative body of County or City. 

3. By any individual, if it is specially injurious to him. 

(a) Must be different in kind, not merely in degree, in common 
with public. 89 Cal. 627; 150 Cal. 171 ; 152 Cal. 118; 6 Cal. 
App. 276; 89 Cal. 26; C.C.P. 731; C.C. 3493; 163 Cal. 84; 
4 Cal. App. 695. 



899. A civil action may be maintained to abate a private nuisance by any 
person injured in person or property thereby. 

1. Action is to enjoin its maintenance in future. Sec. 875 ante. 

2. Mandatory to restore former conditions. Sec. 876 ante. 

3. Damages suffered by maintenance in the past to time of judgment. 
C.C.P. 731; C.C. 3484: 163 Cal. 84. 211 ; 157 Cal. 168; 21 Cal. App. 
312; 2 Cal. App. 346. 



900. The action to abate a public or private nuisance is against the person or 
persons maintaining or suffering same on his property, and every suc- 
cessive owner of such property who neglects to abate it. C.C. 3483 ; 
9 Cal. App. 773. 



901. Such action to abate, although damages are demanded, are equitable, 
in personam, founded on tort, and must be brought in Superior Court, 
transitory as to venue. 163 Cal. 84; 2 Cal. App. 324. 
When brought for damages alone are legal actions as trespass or other 
torts. 144 -Cal. 542; 83 Pac. 300; 152 Cal. 118; Sees. 65, 51, 522, 527, 
530 ante. 



902. Necessary allegations to state a cause of action are : 

1. If by officials for public-*— allege qualification and authority. 

2. Facts showing ownership of property and acts by defendant alleged 
to be nuisance. 

(a) Allege particularly the acts and situation, and defendant's 
connection therewith. 

242 



3. Facts showing such acts or property constitute a public or private 
nuisance. Sec. 895 ante. 

4. Facts showing how such acts or property affect plaintiff. 

(a) If property injured, allege plaintiff's ownership and how it is 
injured. 150 Cal. 171. 

(b) If person, allege situation and how affected or injured. 

5. If by private person against public — allege facts showing his injury 
different in kind from public. 150 Cal. 277. 

6. If damages claimed, allege facts showing as in other cases and 
amounts. 7 Cal. App. 324. 

(a) General, special or exemplary. Sec. 544 ante; 146 Cal. 55. 



903. Defendant may make usual defenses by denial or new matter which 
would defeat plaintiff's recovery under general rules. 

No counter-claim available, except for counter nuisance arising in same 
situation. 

No Provisional remedy available except Preventive injunction. Sees. 
195, 203. 204. 213, 225. 331 ante. 



904. Being equitable as to abatement, jury cannot be demanded, except pos- 
sibly to assess damages for past injury, judgment enjoins maintenance 
and assesses damages already suffered. Sees. 383, 385 ante; 152 Cal. 
118; 146 Cal. 55. 



243 



INDEX 



REFERENCE TO SECTIONS 



Abatement 

— pl(Ms of. lio>v plea. I in answer. 202, 200 (1) 
— wliat actions abate by death, !)7 

Abduction 

— (letinetl — parties to action for, 708 

— action same in nature as assault, 771, 702 

Accounts 

— lidw plead — bill particulars, l.'iC (1) 
— state.l. how plead, 130 (2) 

Accounting 

— had in other actions, 049 

— action for, in what relations, 050 

— nature of action, (i51 

— allegations to state cause, 052 

— provisional remedies, 053 

— defenses, counterclaims, 054 

— by whom and how tried, 055 

Action, civil 

• — defined, and how arises, 10 

— classified, 1 1 

— right of, defined, 13 

— cause of, defined, 13 

— subject of, defined, 13 

— object of, defineil, 13 

— form of, explained, 10 

— effect abolishing old forms, 1 7 

— prosecuted on one theory, 18 

— theory of, defined, 18 

— theory of, when consistent or inconsistent, 19 

— when theories of, consistent, cumulative, 20 

— when theories of inconsistent, must elect, 21, 518 

— how commenced, 27 

— when commenced, 30 

— prematurely begun, 32 

— title of, 43 

— commenced in what courts, 40 

— place commencement as to states, 01, 62 

— place commencement as to county in this State, 

03, 04, 05 
— proper place of trial of, in this State, 06 
— change venue, 6 7-7 7 
— of interpleader, 124. 125 

— another action pending, how plead, 202, 200 (1) 
— selection of one to b? pursued, 517-532 
— actions ex contractu and ex delicto explained, 

520-524 
— actions at law and in equity explained, 525-529 
— actions in Rem and in Personam defined, 530 
— available under different circumstances, 532 
— to recover damages on tort or contract, 535-549 
— cancellation, reformation, rescission, etc., 553-585 
— specific performance, 592-003 
— relating to trusts, 621-648 
— for accounting, 649-655 
— creditor's bills, 650-002 
— relating to liens, 665-677 
— redemption, 6 78-087 
— affecting personal status, 700-740 
— injuries to person, 743-773 
— injuries to personal property, 7 70-807 
■ — injuries to real property, 81()-840 
• — negligence, 850-869 
— permanent injunction, 8 72-880 
— nuisance, 895-904 

Affidavit 

— verification of complaint, 140. 14 7 

— on motion change venue. 70. 71. 72, 73, 76 

— counter affidavits on, 74 
— for order iiublication summons, 107 
— as proof service summons, 15 7, 171 
— amendment of, 250, 257 
— for relief from default, 288, 289, 290 
— defined and when may be used, 362 
— on motion new trial, 4(11 

Alienating affections, see Abduction, 768. 
Amendments 

— of pleadings, documents, proceedings, defined, 250 
— of pleadings, what ways. 251 
— when as of course, 252 

— when and how by leave of court, 253 



— amended pleaijiiigs supersede original. 254 
— except as to new party or cause, 25 4 
— how served, 254 
— in substance opens default, 254 
— to what extent amemled, 255 
— filed without leave, stricken out, 253 
— writs, as summons, executions, etc., how amended, 

256 
— evidence, as affldavits, depositions, etc., 25 7 
— findings and verdict, how amended, 258 
— juilgments and orders, how ameniled, 259 
— bill exceptions, statements, how amended, 200 
— transcripts on api)eal, how amended, 261 
— how differ from supi)lemental pleadings, 266 

Annulment of Marriage 

— action for, parlies and ;;rounds, 710 
— nature of and vetnie. 711 
— custody children, alimony, etc., 712 
— allegations of complaint, 713 
— provisional remedies, 714 
— defenses and counterclaim, 715 
— by whom tried, 716 

Answer 

— raises defects in complaint not on face, 182 

— may cure defects in complaint, 183 

— defined and contents, 186 

— defense in, defined and classified, 187 

— all defenses may be plead, and how, 188 

— defense by denial, defined and classified, 189 

— general denial defined and how plead, 190 

— what issues raised by denial, 195 

— specific denial, define<l and forms of, 191 

— written instrument admitted, unless answer ver- 
ified, 192 

— allegations not denied admitted, 193 

—effect of defective denials, 194 
— defenses by new matter, defined, 198 

— ^plead affirmatively, 199 

— all such defenses plead, 200 

— equitable defenses, how plead, 201 

- — pleas in abatement and bar, 202 

— pleas non-liability, 203 

— pleas liability ceased, 204 

— when waived, 205 

— how plead in special cases, 206 
— counter-claim, defined and explained, 209 

— how several may be plead, 210 

— when for less $300, in Superior Court, 211 

— when more than $300, in Justice Court, 212 

— who may plead, 213 

Answer, (Cent.) 

— what may be plead, 214 

— cross demands as offset, 215 

— what are waived if not plea<l, 210, 217 

— reply to counter-claim or defense, 218 

— how issues tried, 219 
— defects in, how raised. 232 

— demurrer to, defined and grounds, 233, 234 

— motion to strike out, 235 

— motion for judgment on pleadings, 236 

— motion to settle issues, 23 7 

— objection to evidence at trial, 238 

— when waived, 239 
— amendment of, how and to what extent, 250-25D 
— supplemental answer, how filed and purposes, 

205-268, 272 

— objections to, how made, 273 
— construction of answer, 2 74 

Appeals 

— transcripts, undertakings, briefs, amendment of. 

201 
— failure to file transcript excused. 28 < 

— to file notice appeal not excused, 287 

— default taken by motion dismiss. 286 
— bill exceptions, statement or certified transcript 

on. 442-445 

— time prepared and served. 4 45 

— proceedings to settle. 44 7 

— contents and form, 446 

— objections to settlement or "«". 448 

— by whom settled in different cases, 449 

— certificate of judge, 450 

245 



Appeals (Cont.) 

— defined and title of parties, 471 

— conditions jirecedent to hearing, 4 72 
— to what courts from Superior Court, 4 73 
— two methods of appeal tliereto, 4 74 
— from what decisions by either metliod, 4 75 
— how perfected by regular method, 4 7G 

— record on, 4 7 7 
— how perfected by alternative method, 4 78 

— record on, 4 79 
— separate notices and proceedings for each or- 

der, 480 
— objections made by respondent, 481 
— effect of such appeal, 482 
— how record transmitted, 485 
— how record prepared on regular method, 485 

— when ser\e(l and filed, 487 

— what must contain, 4 88 
— how record prepared on alternative methoil, 

489 

— when filed, 490 

— what must contain, 491 
— how briefs filed and prepared, 492 
— objections made to record, 493 
— how placed on calendar and argued, 494 
— who has burden to show error, 495 
— questions Appellate Court considers, 496 
— questions will not consider, 49 7 
— what action Appellate Court may take, 498 
— when rehearings granteil, 499 
— record may be prepared same by either 

method, 500 
— to Superior Court from lower Court, when taken, 
503 

— how taken and perfected, 504 
— when on law alone, heard on record, 505 
— what papers transmitted, 506 
— what action Appellate Court takes, 50 7 
— how set for hearing and heard, 508 
— when on law and fact, what papers sent up, 

509 

— proceedings on in Superior Court, 510 
— effect of appeal on judgment, 511 
— duties of each party on appeal, 512 
— no appeal to higher Court from Superior, 519 
— how decisions reviewed, 514 

Appearance 

— by defendant in action, gives jurisdiction, 150, 158 
— by special, defined, purposes and effect, 151 
— general, defined and effect, 151, 158 
— special, to set aside service summons, 175 

Arbitration 

— special proceeding for, 550 (3) 

Arrest and Bail 

— defined and construed, 295 

— time obtained in either court, 296 

— in what actions obtained in Superior Court, 297 

— in Justice Court, in what actions obtained, 298 

— proceedings to obtain, 299 

— how order executed and arrest made, 300 

— how defendant obtains discharge, 301 

— defendant's remedy on undertaking, 310 

— arrest under judgment, 425, 426, 430 

— arrest under sup])lementary proceedings, 433 

— arrest under contempt proceedings, 435 

Assault and Battery 

— defined, 762 

— when lawful, 763 

— actions for, nature and venue, 764 

— proper parties, 765 

— allegations in complaint, 706 

— defenses and counter-claims, 76 7 

Assignments 

— what rights assignable and how, 85 
- — assignee may sue, 86 

— subject to defenses, etc., 86 
— assignee may be sued, 87 
— assignee substituted as party, 124 
— assignee may continue action in assignor's name, 

124 
• — assignment alleged, 545 

Attachment 

— amendment of affidavit and writ, 256 

— defined and construed, 302 

— time obtained in either court, 303 

— in what actions obtained, 304 

— proceedings to obtain, 305 

— how execution of writ prevented, 306 



— how writ levied, 30 7 

— how writ discharged and property released, 30S 

— third party claim to property seized, 309 

— defendant's remedy on imdertaking, 310 

B 
Bill of Discovery 

— abolished liridcr Code, 351 

Bill of Exceptions 

— see Kxff-plions, 1 12 -■):",() 

Books, papers and writings 

— inspection and examination of, 348 
— production of at trial, :i49 

Briefs 

— trial brief, how prepared, 3 59 
— on appeals, 492, 495 



Cancellation 

— as relief in other actions, 553 
— character of action for, 554 
— in what court and venue, 555 
— how differ from rescission, 556 
— action for defined, 557 

■ — parties to, 558 

— allegations to state cause, 559 

— defenses, counter-claims, etc., 560 

— provisional remedies in, 501 

— by whom tried, 562 

Cause of Action 

— defined, 13 

— statement of, in complaint, defined, 128 

— arranged in paragraph and counts, 129 

— stated in a definite order, 130 

— stated on a definite theory, 131 
— single cause, defined, 132 

• — effect of splitting, 133 
— character matter used in stating, 134 
— forms of allegations in stating, 135 
— how stated in special cases, 136 
— joinder, same cause on different theories, 131 

— different causes, defined, 140 
— rules for, 141 

— classes of 'causes which may be joined, 142 
— set out in separate counts, 143 

Certiorari 

— see Writ of Review, 881-891 

Choice of Remedies 

— see Election of Remedies, 517-532 

Claim and Delivery (provisional remedy) 

— defined, 313 

— in what action and time obtained, 314 

— proceedings by plaintiff to obtain, 315 

— how executed by officer, 316 

— proceedings by defendant after seizure, 317 

— third party claim to property taken, 318 

Common Counts 

— use of on express contracts, 136 (9), 542 
— use of on implied contracts, 136 (9), 543 

Complaint 

— must allege cause accrued and not barred, 38 

— how filed, 2 7 

— defined and contents, 42 

— statement of cause, defined and how made, 128 
— how arranged in paragraphs, 129 
— stated in a definite order, 130 
— stated on one definite theory, 131 
— character of matter used in stating, 134 
— form of allegations in stating, 135 
— examples sufficient statement in special cases, 
136 

—joinder of causes of action — defined, 140 
— rules governing such joinder, 141 
— what classes of causes may be joined, 142 
— set out in separate counts, 143 

— demand of relief in, form and rules, 144 

— signing, by whom and how, 145 

— verification of, in what courts and cases, 146 
— by whom and how, 147 

— two kinds of defects in, 176 

— pleadings to raise defects on face of, 17 7 

— motion to strike whole or part, 178 

— motion for judgment on, 179 

— demurrer to, defined, 180 
— grounds of, 181 



246 



Complaint (Cont.) 

— cleferts not on face raispil by answer, 182 
— defects in waivoil by not dernurrintf, 183 

— cured by answer or jiidprnient, 183 
— amendment of, how and to what extent, 250-2r)5 
— supplemental, how filed and contents, 265-271 

- — objections to, 273 
— construction of complaint, 271 

Compromise, offer to 

— .Ictincd and explained, 34(1, 347 

Condemnation 

— action for defined an. I cxiilained, 84 5, 840 

Conditions precedent or subsequent 

— how plead, i:'.(; (4) 

Confession of Judgment 

— special proceeding's, 550 ( I ) 

Consideration 

— for oral or iinjilied contract, plead, .54 2 

— want of, how plead in answer, 203, 206 (3) 

— failure of, how plead in answer, 203, 206 (4) 

Contempt Proceedings 

— use anil jirnceedioKs in explained, 43,5 
— to enforce juilKuu'nt, 42ti 

Contracts 

— written, how plead, 130 (3) 542 

— use common counts on, 136 (9), 542 

— implied, how plead, 542, 543 

— use common counts on, 136 (9), 543 

— payable out of special fimd, 136 (10) 

— want or failure consideration, how plead, 203, 206 

— action to cancel, rescind, re-issue, etc., 553-581 

— action to quiet title to monev or property under, 

582-589 
- — sjiecific performance of, 592-603 

Contribution 

— defined and explained, 691-693 

Contributory Negligence 

— how plead in answer, 203, 200 (5) 

— defense to action of negligence, 861, 866, 869 

Conversion 

— action for, defined, 787 
— nature of action, 788 
— waiving tort and suing on contract, 789 
— allegations to state cause, 790 
• — defcHe^s'and counter-claims. 796 
— examples parties and property subject to, 79T 

Corporations (private) 

— as parties suing or sueil. 114 

■ — -incorporation alleged, 114 

• — when stockholilers suing or sued, 114 

— stockholders may move to set aside Judgment, 28 7 

— changing name of, 734-736 

— proceedings to dissolve, 73 7, 738 

Costs 

— default in filing memorandum, 286 

— not excused, 287\ 
— defined, 410 
— allowed as "of course" in what actions, 411 

— only by Court in some actions, 411 

— in some none allowed, 411 
— nature items allowed, 412 
— on appeal when allowed and nature, 413 
— proceedings to secure and recover, object to 

and re-tax, 414 
- — security for costs, when may be re.iuired, 415 

Counter-claim 

— see answer, 209-219 

— when unnecessary, 229 

— defects in, how raised, 232-239 

Courts 

— defined, 44 

— names trial and appellate, 45 

— in what, to commence actions, 46 

— jurisdiction of, defined, 4 7 

— powers, how and by whom exercised, 48 

— Supreme, jurisdiction over causes, 49, 473 

— District Appeal, jurisdiction over causes, 50, 4 73 

— Superior, jurisdiction over causes, 51, 503 

— Justice, jurisdiction over causes, 52 

— Police, jurisdiction over causes, 53 

— ^jurisdiction over cause, how determined, 54 

— ^jurisdiction fixed by law, 55 

— ^jurisdiction over person and thing, 56 

— Justice Court, limited jurisdiction, 57 



— titles of courts, 58 

— trial by court without jury, 395--107 

— appeals from Superior to Supreme or Appel- 

late, 4 73 
— appeals to Superior from Justice or Police, 503 

Creditor's Bill 

— defined anil when used, 650 
— code proceedincs substituted, 657 
— conditions precedent to action, 058 
— nature of action by creditor, 659 

— necessary parties to, 660 

— necessary proceedings and allegations, 601 

1. against debtor himself, 

2. against third person to reach ijebt due 
debtor, 

3. to set aside fraudulent conveyances, 

— against stockholders and directors corporations, 

stockholders on statutory liabil- 



1. 



stock subscrip- 



against 
ity, 

2. against stockholders 
tions, 

3. against directors assets paid out or mis- 
af)propriated. 

Criminal Conversation 

— defined. 7tiO 

— proceedings same as assault, 762 

Cross-Complaint 

— serving of. 159. 224 
— defined and explained, 222 
— forms of allegations in, 223 
— ^vhen and how filed in Superior Court. 224 
— cannot be filed in Justice Court, 224 
— in what cases may be filed, 225 
— how objections to filing made, 226 
— how issues tried, 22 7 

— difference between cross-complaint and counter- 
claim, 228 
— when unnecessary, 229 
— defects in, how raised, 248 

D 

Damages 

— actions to recover, character of, 535 

— defined and classified, 536 

— measure of, defined, 537 

— parties, by and against whom maintained, 538, 

539 
— in what courts brought, 540 
— necessary allegations on express contract, 541 

— how contracts alleged, 542 
— necessary allegations on implied contract, 543 
— necessary allegations on tort, 544 
— alleging assignment, 545 
— what provisional remedies, available, 546 
— defenses made thereto, 54 7 
— counter-claims or cross-complaints, 548 
— how and by whom tried, 549 
— special proceedings for, 350 

Default 

— defined, when occurs and how prevented, 284 
— in filling pleading, how entered, 285 
— in other proceedings, how taken, 286 
— relief from, in what cases obtained, 287 

— when and how obtained in Superior Court, 
288 

— in Justice Court, 291 

— how obtained when entered on constructive 
service, 289 
— how vacated when entered prematurelv, through 
fratid. etc., 290 

Defenses 

— see Answer. 

Demurrer 

— to complaint, defined, 180 

— what defects raises and issues created, 176, 177 

— grounds of demurrer, 181 

— what defects waived by not demurring, 183 
— to answer, defined, 233 

— grounds of. 234 
— amendment of, how and to what extent, 250-255 
- — no supplemental demurrer, 265 

Deposit in Court 

— defined, 340 

— in what cases allowed, 341 

— proceedings to effect, 342 

— when may be required by Court, 343 

— proceedings to obtain order, 344 

— Iiow fund or property disposed, 345 



247 



Depositions 

— amendment of, 257 
— as to <looumcnts, books, etc., 348-350 
— defined and in what cases taken, 363 
— [iroceedinss to take within or out of State, 364 
— when may be used, 3C4 

Dismissal 

— of at-lion or proceeding therein, defined, 27 7 

^may be obtained by different parties, 278 

— how, by plaintiff alone, 279 

— how and when on motion defendant, 280 

— how and when by Court. alone, or by defendant, 

282 
— how on stipulation of parties, 281 
— not bar to another action, when, 283 
— of proeeedinKS for new trial, 280 

Divorce 

— action for defined, 701 
• — nature action and venue, 
— grounds to obtain, 703 
— parties to, 704 
— allegations of complaint, 705 
— alimony, attorney fees and expenses, 706 
— provisional remedies, 707 
- — defenses and counter-claims, 708 
— by whom tried, judgment, etc., 709 

E 
Election of Remedies 

— defined and rule stated, 21, 518 
— when consistent or inconsistent, 19 
— when consistent or cumulative, 20 
— of causes of action, 131 
— selection of remedies defined, 517 
— when selection made, 518 
— how determined, 519 
- — actions classified, 520 

— ex contractu explained, 521 

- — ex delicto explained, 522 

— when may be either, 523 
- — what duties are imposed by law, 524 
— difference between actions at law and in 

Equity, 525 

— what are actions at law, 526 

■ — what are actions in Equity, 527 

— when actions at law pursued, 528 

—relief granted by action in Equity, 529 
— actions in Rem anil in Personam, 530 
— special proceedings defined and explained, 531 
— examples of different remedies available, 532 

Electors' Rights 

— how enforced, 740 

Ejectment 

- — defined and purpose, 812 

— nature action and venue, 813 

— parties to, 814 

— allegations to state cause, 815 

- — provisional remedy, 816 

- — defenses and counter-claim, 817 

— by whom tried and judgment, etc., 818 

Equitable Defenses 

■ — how plead in answer, 201 

Estoppel 

— how plead in complaint, 136 (11) 

— not plead, for use against answer, 136 (11) 

- — how plead as defense in answer, 202, 200 (7) 

Evidence 

^on motions, 24, 70-74, 123, 124, 175 

— preparation of, for trial, 360 

— testimony of witness, how secured at trial, 361 

— by affidavit, when used, 362 

— by deposition, when and how taken, 303, 364 
- — order presented at trial, 399 
— manner introduced at trial, 400 
• — objections made to that offered, 401 

Examination of Party 

— of body, how compelled, 350 

— of books, papers and objects in his posses- 
sion, 348-350 
— as to testimony, 351, 363, 364 

Exceptions 

— Bill of, may be amended, 260 
- — objections to settlement, 286 
— relief from default in, 287, 288 



— defined and explained, 438 

— rulings deemed excepted to, 439 

— to other rulings, when entered, 440 

— how entered, 441 
— Bill of Exceptions defined, 442 

— separate bill for each, 443 

— when prepared and served, 444 

— on exceptions during trial, when prepared, 445 

— form and contents of, 4 46 

— proceedings to settle, 44 7 

— objections to settlement or use, 448 

—by whom settled, in different cases, 449 

— certificate by Judge settling, 450 

• — use on motion for new trial. 4(11 

Execution 

— of judgiTient, how stayed, 421 

— defined, 4 24 

— issued to enforce, judgments in certain cases, 

425 
— not issued on some judgments, 426 
— when mgy be issued and how, 42 7 
— how iss\ie is obtained, 428 

— to whom directed and by whom enforced, 429 
- — how enforced by officer, 430 
— how recalled, quashed or set aside, 431 
— supplementary proceedings to enforce, 432-434 
— enforced by contempt proceedings, 43 5 

Executors, Administrators 

— may sue as real party, 83 

— when may sue or be sued, 97 

— qualifications alleged, 96 

— foreign, when may sue or be sued, 98 

— when substituted as party, 124 



False Imprisonment 

— action for, defined, 748 
— nature and venue of action, 750 
— allegations in Complaint, 751 
- — defenses, counter-claims, 752 
— parties, 755 

Fictitious or wrong names 

■ — persons sued in. 119 

— mistake, how corrected, 119 

Findings 

- — amendment of, 258 

- — by Referee and objections thereto, 3 76, 37 7 

—by Court, after trial, its decision, 404 

— how waived, 405 

■ — how prepared, filed and contents, 406 
- — how may be reviewed by trial Court, 457 

— new trial, proceedings in, 458-466 

- — entering different judgment on, 46 7-469 

Forcible Entry and Detainer 

■ — ^action for defined, 819 
■ — nature and venue, 820 
• — parties to, 821 
— allegations to state cause, 822 
— provisional remedies, 823 
— summons in, 824 
— defenses and counter-claims, 825 
— by whom tried, judgment, etc., 826 

Fraud 

— how plead in complaint, 136 (12) 

■ — how plead in answer as defense, 203, 206 (2) 

— default entered, through, vacated, 290 

Fraud, Statute of 

• — how plead in answer, 203 

Fraudulent conveyances 

See Creditor's Bill, 661 (3) 



Guardians 

— general, may appear for ward, 100 

-^ad litem, how appointed and may appear, 100 

— when may sue or be sued for ward, 101 

— qualification must be alleged, 100, 102 

— appointment of in Probate Proceedings, 726 

H 

Habeas Corpus 

■ — defined and explained, 745 

— court and proceedings to obtain, 746 

• — repeated application may be made, 74 7 



248 



Husband and wife 

— when must bo joiiiucl as parties, 105 
— when iiia.v sue or lie sued alone, 105 
— divorce, with alimony, 701-700 
— annuhneiit of marriafje, 710-71H 
— for supiiort without divorce, 717-720 
— ab(hictioM — alicnatiiipr affections, 768 
— criminal conversation, 700 
— seduction — rape of wife, 7 70 



Incompetents 

— who are, 99 

— how sueil, 100 

— status alleged, 102 

— when party becomes, 

Injunction 

— as provisional remedy, 328-337 
— defined and classitied, 328 
— when preventive, or man<lator}' may issue, 
— matter discretion, not rifjht, 330 
— when and in wliat cases granted, 331 
- — not g-ranted for wiiat )iurposes, 332 
• — when granted or denied ex parte, 333 
— proceedings to obtain in other cases, 334 
— remedies of party enjoined, 335 
— how affected by final judgment, 336 
— remedy of party enjoine<l, on dissolution, 337 

— permanent injunction, 872-880 
— defined and classified, 872 
— not granted for some purposes, 8 73 
— when granted to prevent breach contract, 874 
— when granted to prevent wrongs, 8 75 
— instances for mandatory injunctions, 876 
— action for, nature, venue and parties, 877 
— allegations to state cause, 8 78 
— defenses and counter-claims, 8 79 
— by whom tried, judgment, etc., 880 



how action continued, 124 



329 



Inspection 

— of books, docinnents and writings, 348 
— production same at trial, 349 
— of other physical objects, 350 

Interpleader 

— a defendant bringing in new part\' and compelling, 

124 
• — a plaintiff compelling defendants to. 125 

Intervention 

— by whom, when and procedure, 126 
— if denied, applicant may appeal, 120 
— service of complaint in, 159 

Issues 

— of law, how raised. 17t;, 177, 180, 233 
— of fact, how raised, 176, 186 
— trial of, defined, 354 

— of law, how set and heard, 355, 356 

— of fact, how set and heard, 357 

— continuance of trial, 358 

— preparation for trial, 359, 360 

— settled on motion before trial, 23 7, 398 

J 

Joinder of Causes of Action 

— same cause on different theories, 131 
— dift'erent causes, defined, 140 

— rules of, 141 

— classes causes which may be, 142 

— set out in separate counts, 143 

Joint and Several 

— when right or liability is, 100 

— when persons are sued jointly or severally, 10 7 

— partners, how sue or be sued, 108 

— tort feasors, how sued, 109 

— tenants in common or joint as parties, 110 

— n\nnerous pers^ons;, lunv sue or be sued. 111 

Judgments or Order 

— how plead, 136 (0) 

— motion for, by defendant on pleadings, 179 

— motion for, by plaintiff on pleadings, 236 

— amendment of, 259 

— entering on Referee findings, 3 70 

— entering on verdicts, 392 

— defined, 416 

— in what cases may be entered, 417 

— manner of entering, 418 

— general effect of, 419 

— manner of enforcing, 420 



— how stayed, 421 
— how enforced by e.xecution, 424-4:{l 
— other [)rocepdings to enforce, 4 20 
— suppfementary proceedings to enforce, 432-434 
— contempt proceedings to enforce, 435 
— reviewing by trial court, defined, 4 53 

— what orders or decisions reviewed, 454 
— exparte orders, 455 
— -molioiiH on notice an<l orders on, 4 56 
— judgments entered on verdicts or findings, 4 5\ 
— new trial, proceedings on, 458-466 
— vacating and entering different judgment, 40 i 
469 
— appeal from, in Superior Court, 4 75 
— appeal from, in Justice or Police Court, 503 



Libel and Slander 

— action for, defined and distinguished, 756 
— nature and venue, 757 
— parties to, 758 

— plaintiff nmst give bond to secure costs, 759 
— allegations in complaint, 760 
— defenses and counter-claims, 761 

Liens 

— defined and explained, 665 
— those enforced without action, 666 
— what enforced by action, 667 
— action only way to enforce mortgage, 068 
— action to recover debt without foreclosjng lien, 669 
— nature action to enforce and venue, 6 70 
— by and against whom prosecuted, 671 
— allegations to foreclose lien by contract. 072 
— allegations to foreclose liens created by law, 6 73 
— allegations to foreclose taxes, street liens, etc., 

674 
— provisional remedies, 675 
— defenses, counter-claims, etc., 676 
— by whom tried, judgment, etc., 677 
— redemption from, without action, 6 78 
— action to release, when debt paid, 679 
— conditions precedent to recover property, 680 
— action to redeem, — by whom and wlinn main- 
tained, 681 
— parties to. 682 
— nature action and venue, 683 
— allegations to state cause, 684 
— provisional remedies, 685 
— defenses and counter-claim, 686 
— ^by whom tried, 687 
— tax liens, how enforced, 694 

— how validity tested, 095 
— assessments, how validity tested, 696 

Limitations, Statute of 

— relating to commencing actions, 30 

— general principles, relating to, 31 

— exceptions period begins accrual cause, 33 

— cases wherein no limitations, 34 

— periods in actions relating to real property, 35 

— periods in actions not relating to real property._36 

— running period stopped, extended, shortened, 37 

— pleadings must allege accrual of cause and not 

barred by limitations, 38 
— applies alike to defenses, 39 
— computation of time of periods, 40 
— how plead in answer, 204. 206 (6) 
— plead by demurrer or answer, 181, 183 

Lis Pendens 

— in what cases filed, object and contents, 148 

M 

Maintenance and Support 

— as alimony in divorce actions, 701j_ 700, 709 
— provided in action for annulment, 712 
— action by wife for, without divorce, 717 

— by husband against wife, 718 
— between parent and child, 719 
— actions by third persons for necessaries supplied, 

720 

— pleadings in, 721 

Malicious Prosecution 

— action for, defined and explained, 749 
— nature and venue of, 750 
— allegations in complaint, 753 
— defenses and counter-claims, 754 
— parties to, 755 



249 



Mandamus 

— defined and explained, 604 

— by wliat courts issued, G05, (!18 

— to courts, to perforin what duties, 600 

— to officers and boards to perform duties, 607 

— to private corporations to jierform duties, 008 

— not to enforce contractual duties, 609 

— to admit a person to oflice, (ilO 

— in what cases will not issue, 611 

— at whose application will issue, 612 

— alternative or i)ereuiptory, 613 

— proceedings to obtain writ, 614 

— service on defendant, 615 

— defendant's pleadings, 616 

— trial and judg-ment, 617 

Married Women 

— wlien !na\' sue or be sued alone, 105 
— when husliand must be joined, 105 

Minors 

— who are, 99 

— how sued, 100 

— minority alleged. 102 

Mortgage Foreclosure. See Liens 

— mortgage as a lien, 665 

• — enforced without action, when, 606 

■ — action to foreclose, only remedy, 668, 66 7 

— nature action and venue, 6 70 

— parties to, 671 

— necessary allegations, 6 72 

— provisional remedies, 6 75 

— defenses, counter-claim, etc., 676 

— by whom tried, judgment, etc., 6 77 

Motion 

— defined, 23 

— notice of, contents and form, 24 

— notice of, when and how served, 25 

— to set aside service .Summons, 175 

— to strike out pleading, or parts of, 178, 2.3S 

— by defendant for judgment on pleadings, 179 

— by plaintiff for judgment on pleadings, 2.36 

— to settle issues before trial, 23 7, 398 

— to strike out amended pleading filed without 

leave, 262 
— preliminary to trial, that may be made, 397 
■ — during trial that may be made, 402 
— to retax costs, 414 

— for new trial, proceedings in, 458-466 
— to vacate, and enter different judgment, 46 7-469 
— reviewing motions or orders on, 4 56 

N 
Name Change of 

— name defined and explained, 734 \ 

— proceedings to change defined, 734 

— changing name without action, 735 

— venue and how proceedings conducted, 736 

Negligence 

— contributory, how plead in answer, 203, 206 (5) 

— injury to personal propertj', 803 

— defined and classified, 850 

— "due care" defined, 851 

— intent not an element, 852 

— three essential elements, 853 

— how "duty of defendant" created, 854 

— what duties contract creates, 855 

■ — what duties implied by law, 856 

— what duties imposed by law, 85 7 

— modifying or limiting duties, 858 
■ — failure defendant to perform dutv — how ascer- 
tained, 859 

— rules in determining, 860 
— injury to plaintiff — rules considered, 861 
— action for negligence — nature and venue, 862 

— classified — on contract or tort, 863 

— -provisional remedies, 864 

— allegations to state cause, 865 

— defenses and counter-claims, 866 

— parties to, 867 

— l)y whom tried, judgment, 868 

New Trial 

— dismissal of proceedings, 280 

— objections to on default, 286 

— failure to file notice not excused, 287 

— statement or bill exceptions on, when settled. 443, 

445 

— form" and contents of, 446 

• — proceedings to settle, 44 7 

— objections to settlement or use, 448 



— by whom settled in different cases, 449 
— certificate of judge, 4 50 
— defined and when can be had, 4 58 

— when granted on court's motion, 4 59 

— grounds for on motion of party, 4 60 

— evidence, papers, or record used, 461 

— procedure in making, 462 

— how motion presented, 4 63 

— what judge may hear and determine, 464 

— riuestions judge may consider, 4 65 

■ — order deciiling how made and effect, 466 

Notice of Action. See Lis Pendens, 148 
Notice of Motions 

— wlien r<M|uiicd, '2'-'> 

— contents and form, 24 

— when served, 25 

— how served, 160 

- — of motion change venue, 70-73, 70 

— of application third person to be added as party, 

123 
— for substitution as party, 124 
— to interplead parties, 124 
— none in intervention, 126 
• — to elect remedy, 21 

— of motion to set aside service of summons, 175 
— of hearing demurrer, and ruling thereon, 180 
— amendment of, how and to what extent, 250-255 
— intention to move for new trial, 462 
— to vacate and enter different judgment, 469 
— of appeal from Superior to higher Court, 472, 47b> 

478 
— of appeal to Superior from lower Courts, 504 

Nuisance 

— defined and explained, 895 
— classified — public or private, 896 
— abatement of without action, 897 
— public, abatement of by action, 898 
— private, abatement of by action, 899 

— against whom maintained, 900 

— nature and venue of action, 901 

— allegations to state cause, 902 

— defenses, provisional remedy, 903 

— by whom tried, judgment, 904 



Offer to Compromise 

— flefined and exjilained, 3 46 

— how offer maile and proceedings, 347 

Ordinances and Private Statutes 

— how plead, 136 (7) 

— rights under, how plead, 136 (4) 

Ownership 

— how plea<l. 136 (8) 



Parents 

— who are, 99 

— when mav sue or be sued, 101, 719, 720 

— adoption "of child, 722, 723 

Parties 

— defined and explained, 80 

— adverse and capacity to sue or be sued alleged, 81 

— proper title in pleadings, 82 

— real party in interest must sue, 83 

— explained and exceptions, 83 

— liable must be sued, 84 

— assignee, who is, 85 

— may sue as real party in interest, 86 

— subject to what defenses, etc., 86 

— may be sued when, 87 
— principal and agent, relation defined, 88 

- — -disclosed agency, who sue and be sued, 89 

— imdisclosed agency, who sue and .sued, 90 

• — unauthorized agent, who su£ and sued, 91 
— trustee and beneficiary, relation defined, 93 

— in actions with third persons affecting trust 
property, who sue and sued, 94 

— in actions between trustee and beneficiary, or 
between beneficiaries, parties, 95 
— executors, administrators, heirs, devisees, 95 

— may sue as exceptions to real party, 83 

— w-ho may sue or be sued, 9 7 

— foreign, who may sue or be sued, 98 
— incompetents, minors, parents and guardians, 99 

— when may sue or be sued and how, 100, 101 

— qualifications or status alleged, 102 
- — ui\married female sue for seduction, 100 



250 



be 



5G9, 



GG2 



Parties (Cont.) 

— husbaiul and wife — married women, 105 

— when may sue or be sued alone, 105 
— persons jointly or severally interested 

106 

— when joined or sue or sued alone, 107 

■ — partners, how sue or be sued, 108 

— tort feasors, how sued, 109 

— tenants in common, or joint, 110 

— nuni'-Tous persons suing or sued. 111 
— corporations, private — power to sue 

Bued, 114 

— when stockholders may sue, 114 

— incorporations alleged, 114 
— State, countv, citv, public institutions, as par- 
ties, 115 
— public officers, as parties, llii 
— receivers, suing or being sued, 117 
— taxpayers as parties, 118 
— fictitious, or wrong names, sued in, 1 1 
— change of, how made, 121 

— how party dropped, 122 

— how new parties added. 12:' 

— how persons substituted as parties, 124 

— by interpleader, 124. 125 

— by intervention of interested person, 120. 
— in actions for damages, 5.38. 
— in actions for cancellation, 558 
— in actions for re-issuance instrument, 578 
— in actions for rescission and reformation, 

573 
— in actions for quiet title under contracts, 583. 

586 
— in actions for specific performance, 598 
— in actions for mandamus, C12 
— in actions relating to trusts, 623, 628, 633. 

636, 642, 643 
— in actions for accounting, 651 
— in actions for creditor's bill, 660, 661 

in actions for foreclosure liens. 671 

— in actions for redemption, 682 

— in actions for quo warranto, 731 

— in actions for false imprisonment, 755 

— in actions for malicious prosecution, 755 

— in actions for libel and slander, 758 

— in actions for personal injuries, 765, 769, 770 

— in actions for replevin — conversion, 781, 797, 800 

— in actions for ejectment. 814 

— in actions for forcible entry and detainer. 821 

— in actions for quiet title, 829 

— in actions for trespass, 836 

— in actions for negligence, 867 

— in actions for injunction, 877 

— in actions for nuisance, 898-900 

— in actions for certiorari — prohibition. 884-894 

Partners 

— how sue or be sued, 108 

— action for accounting between, 650-655 

— action for dissolution, 739 

Partition 

— action for defined and explained, 843, 844 

Payment 

- — how plead, and bunlen proof, 204 

Personal Injuries 

- — defined, 743 

— various remedies for, 74 4 

— habeas corpus, 74 5 

— malicious prosecution and false imprisonment. 74S 

— libel and slander, 756 

— assault and battery — trespass, 762 

— abduction — alienating affections, 768 

— criminal conversation, 760 

— seduction — rape, 7 70 

— denying public entertainment, 7 72 

— negligence. 850 

Personal Property 

— injury to, defined, 7 76 

— various remedies for, 777 

— replevin, 778-786 

— conversation, 78 7-79 7 

--trespass, 798-802 

— slander title and negligence, 803 

— quiet title, 804 

Personal Status 

- — relations establishing, 700 
— actions affecting, 701-740 



Physical Objects 

— inspection of. how obtained, 348-350 
— proiluction of at trial compelled, 349 



iabie, Pleadings 



(h-Mned, 22 
— inotion, defined, 23 
— notice of contents and form, 24 
— notice of motion, how served, 25 
— complaint, how filed, 27 

— define<l and contents, 42 

— statement of cause of action in, 128 

— arrangement of allegations, 129, 130 

— statement of cause on one theory, 131 

—character of matter used, 134 

— form of allegations in, 135 

— example of statements in special cases, 136 

— ^joinder of causes in, 140-143 

— demand of relief in and signature. 144, 145 

— verification of, 14 7 
— service of after summons, 160 
— transmitting copies by mail or telegraph, 161 
— when defendant must plead, 174 

— motion to set aside service summons, 175 

— ilemurrer to complaint defined, 180 
— grounds of, 181 
— amendment of, how and to what extent, 250-25' 
— supplemental pleadings, defined, 265 

— how difier from amended, 266 

— how filed. 26 7 

— when may be filed, 268 

— for what purposes filed, 269 

— what may contain, 270-272 

— objections to. how made, 273 
— construction of pleadings, 274 

Pledge. See Liens, 665-677 
Practice 

— defined, 26 

Principal and Agent 

- — relation defined. S8 

— disclosed, who sue and be sued, 89 

— undisclosed, who sue and be sued. 90 

— unauthorized agent, who sue or be sued, 91 

Probate Proceedings 

— defined and explained, 724-728 

Production books, papers, etc. 

— for inspection, how enforced, 348 
• — at trial, how compelled, 349 

Prohibition, Writ of 

— defined and explained, 892 

— against whom and what acts, 893 

— proceedings to obtain. 894 

Provisional Remedies 

- — defined and classified, 294 
—arrest and bail. 295-301, 310 
— attachment, 302-310 
— claim and delivery, 313-318 
— receivers, appointment of. etc.. 319-325 
— injunction. 328-337 
■ — deposit in Court, 340-345 
— offer to compromise, 346-347 
— inspection of writings and objects. 348-350 
— examination of party, 351, 363, 364 
— in actions for damases. 546 

Public Entertainment, denial of 

— actions for, defined and explained, 772-773 

Public Institutions 

— State, county, city, suing or sued, 115 
— public officers as parties, 116 



Quiet Title 

— To money or property under contract, 58 
— character action, venue and parties, 583 
- — allegations to state cause, 584 
— defenses, counter-claims, etc., 585 
— action by surety or guarantor for, 586 
— character action, venue and parties, 58 
— allegations to state cause, 588 
— defenses, counter-claims, etc., 589 
— to personal property, 804-807 
— to real property, defined, 827 
■ — -nature and venue, 828 
— parties to, 829 
— allegations to state cause, 830 
— defenses and counter-claim, 831 
— by whom tried, judgment, 832 



251 



Quo Warranto 

— defined and i)urpose, 729 

— exclusive remedy in some cases, 730 

— parties in proeeedinss, 731 

— how Attorney General moved to act, 732 

— pleadings and proceedings, 733 

R 
Real Par.ty 

— in interest must sue, 83 
— liable, must be sued, 84 

Real Property 

— injury to, defined, 810 
— various remedies for, 811 
— ejectment, 812-818 
— forcible entrv and detainer, 819-820 
— quiet title, 827-832 
^trespass — waste, 833-840 
— slander title. 841-842 
— partition, 843-844 
— condemnation. 84.')-84G 
■ — neglisence. 850-809 

Receivers 

• — when may sue or be sued, 117 
— foreign, when niav sue, 117 
^defined. 319 

— appointed only in Superior Court, in what ac- 
tions, 320 
- — proceedings to obtain appointment, 321 
— how quality after appointment, 322 
— proceedings of defendant after appointment, 323 
— powers and duties of, 324 
— compensation, expenses, etc., 325 
— to carry out judgment, 426 

Redemption. See Liens, 678-687. 
Referee 

- — may try issues raised by answer, 35 7 

— reference defined and by what court, 30 7 
— classified and how ordered, 308 
— when voluntary may be ordered, 309 

— proceedings to obtain, 3 70 
— when compulsory may be ordered, 371 

— proceedings to obtain, 3 72 
— how many and who appointed referees, 373 

— when and how objections made, 374 
- — proceedings and powers of referee, 3 75 
— findings and its contents. 3 76 

— objections to, how made. 3 77 
— expenses and costs of. 3 78 
— referee appointed to carry out judgment, 426 
— referee mav act in supplementarv proceedings, 
433. 434 

Reformation of Instruments 

— what instrument's reformed. 5 71 

— when will be reformed, 5 72 

— actions for. defined. 5 71 
— character and venue, 573 
— allegations to state cause, 574 
— defenses, counter-claims, etc., 5 75 

Re-issue Instruments 

— lost plea dines, documents, etc., 576 
— action for, defined, 577 

— parties to, 578 

— allegations to state cause, 579 

— defenses, counter-claims, etc.. 580 

— provisional remedies used, 581 

Relief 

■ — defined and classified, 12 

— different recovered on one theory, 18 

— demand for in complaint, 144 

— by preliminary injunction. 328-337 

— granted by judgment. 410-421 

Remedy 

— defined, and how arises, 5 

— governed by what law, 7 

— judicial, defined and classified. 9 

— in .statute creating new rights. 14 

— civil and criminal, not merged, 15 

— ^provisional remedies, 294-3.51 

— selection of remedies. 517-532 



Replevin 



- — ;ictioii. defined, 778 

■ — how differ from conversion, 779 
— character action and venue, 780 
— parties to action, 781 
— allegation to state cause, 782 



— by amendment changed to conversion, 783 

— provisional remedy, 784 

— defenses and counter-claim, 785 

— by whom tried, judgment, etc., 780 

Rescission 

— how plead in answer, 204 

— relief for in other actions, 553 

— character of action, 554 

- — in what court and venue, 555, 560 

— how differ from cancellation, 550 

— action for defined and explained, 503 

— in what cases may obtain, 564 

— steps to accomplish, 565 

— allegations to state cause, 567 

— provisional remedies used, 568 

— parties to, 569 

— defenses, counter-claims, etc., 570 

Reviewing Orders and Decisions by Trial 
Court 

- — iletined and explained, 453 
- — what orders or decisions reviewed, 4 54 
— exparte orders or decisions, 455 
— orders made on motions on notice, 456 
- — verdicts or findings and judgments, 457 
— new trial defined and when granted. 4 58 
— when granted on court's motion. 4 59 
— grounds for on motion party. 400 
— evidence or papers used on. 461 
— procedure on motion for, 462 
— how motion is made, 463 

— to whom presented and by whom heard, 464 
— question judge may consider. 465 
- — order deciding how made, and effect, 466 
— motion to vacate, and enter different, judg- 
ment. 46 7 
— grounds for, 468 
— proceedings in making. 409 

Rights 

— defined and classified, 2 

— and corresponding duty, 3 

— ^breach of, a wrong, 4 

— violation of. gives rise to remedy. 5 

— governed by what laws, 6 

— of action, defined, 13 

— statutory rights, 2, 14 

- — when joint and several, 100, 108 



Seduction 

- — defined, who maintain action for. 770 
— proceedings same as assault, 7 71. 762 

Selection of Remedies 

See Election of Remedies, 517-532 

Service 

— of Summons, personal, how, 155 
— by whom, 156 
— proof of, 157 
— effect of, 158 
— constructive service, how. 169 
— effect of, 170 
— proof of , 1 7 1 
— on foreign corporation, 155. 165 
— of amended complaint, cross complaint, el 

before defendant's appearance. 159 
- — of notice and other papers after summons. 160 
— how copies to be served transmitted, 161 
— motion to set aside service summons, 175 

Slander 

— of person, see LreEL, 756-761 
— of personal property. 803, 841, 842 
— of title to real property, 841. 842 

Special Proceedings 

— deflneil and explained, 14 

- — pleadinirs and procedure, 28 

— 'how commenced. 27. 28 

— when commenced, 30 

— premature. 32 

— explained and distinguished. 531 

■ — to recover damages alone. 550 

Specific Performance 

— of contracts, action for defined, 592 
— character of action, 593 
— court and venue, 594 
— what contracts not enforceable, 595 
— by and against what parties enforceable, 596 
— contracts enforceable. 597 
— parties to the action, 598 



252 



Specific Performance (Cont.) 

— allegations to state cause, 599 

— provisional remedies available, 600 

— defenses may be plead, COl 

— counter-claims and cross-comi>laints, 602 

— relief obtainable by judgment, 603 
— proceedings to enforce performance legal duties, 

604, 618 
See mandamus 

Stockholder's liability 

— sec CrcNlitor's Hill, 662 

Submitting Controversy 

— siiccial procccilings for, 550 (2) 

Subpoena 

— to compel attendance witnesses at trial, 361 
— -Ijefore otliccr taking deposition, 364 

— duces tecum, to produce papers, books, etc., 348, 
349, 360 

Subrogation 

— dctined and when applicable, 688 

— relations in which applied, 689 

— no action for, but applied in other actions, 690 

Summons 

— issuance and service gives jurisdiction, 150 

— defined and contents, 152 

— how and when issued, 153 

— sei-ved in two ways, 154 
— how personally served, 155 
— by whom so served, 156 
— how proof service and return made, 157 
— when jurisdiction acquired by, 158 
— copy may be sent by mail or telegraph, 161 
— constructive service defined and in what cases, 
164 

— in what cases may be had, 166 
— order publication, how obtained, 16 7 

— what it must contain, 168 
— in what ways service is made, 169 
■ — when complete and jurisdiction acquired, 170 
— proof of service and return, 171 

— service on foreign corporations, 155, 165 

— on amended complaint, cross-complaint, etc., 159 

— motion to set aside service summons, 175 

Supplementary Proceedings 

— defined and explained, 432 
— against judgment debtor, how obtained, 433 
— against third person, how obtained, 434 
— contempt proceedings to aid, 435 



Taxes 

— lien for, how enforced, 694 
— how validity of tax lien tested, 695 
see Liens. 

Taxpayers 

— when may sue or be sued, 118 

Tenants in Common or Joint 

— how sue or be sued, 110 

Theory 

— action prosecuted on one, 18 

— of action defined, 18 

— consistent or inconsistent, 19 

— election of inconsistent, 21, 518 

— changed by amendment, 255 

— complaint drawn on, one, 131 

— as to issues formed, cures defects, 183, 239 

— of trial, parties bound by, 407 

— different theories under various circumstances, 532 

Title 

— of actions, 43 
— of courts, 58 

Tort feasors 

— how sued, 109 

Transcripts on Appeals 

— in Supreme or Appellate Court. 

— regular method, 485-488, 500 

— alternative method, 489-491, 500 
— in Superior, from lower Courts, 506, 509 

Trespass 

— on person, see Assault and Battery, 762 
— abduction, seduction, etc., 768 



— on personal property — defined, 798 

— differ from replevin or conversion, 799 
— I>arties to, 800 
— allegations to state cause, 801 
— defenses and counter-claim, 802 
On real property, defined, 833 

— action for, nature and venue, 833 

— parties to, 836 

— allegations to state cause, 83 7 

— provisional remedies, 838 

— defenses and counter-claim, 839 * 

— by whom tried, 84 

Trial 

— dismissal of action at, 279, 281 
— on motion non-suit, 280, 282 
— of issues law or fact, defined. 354 
— rof issues of law by court, and how set, 355 
— of issues law on intermediate motion, how set, 356 
— of issues law or fact raised by answers, when ana 

by whom, 357 
— continuance, when and how obtained, 358 
— preparation for trial of, make trial brief, 359 
— discover, prepare and secure evidence, 360 
— attendance of witness, how secured by sub- 
poena, 361 
— affidavit defined and when may be used, 362 
— deposition, defined and in what cases taken, 363 
— proceedings to take within or without State, 364 
— by ancl before referees, 36 7-3 78 
— how reference orrlered, 367-372 
— appointment of referee, 373, 374 
— trial before, how conducted, 375 
— findings and objections thereto, 376, 377 
— bv and before a jury, 381-392 
-^a jury define.l, 381, 382 

— when must be had, and how waived, 383, 384 
— in equity suits not demanded, 385 
— how selected and summoned, 386 
— challenge to panel, 387 
— qualifications of, 388 • 
— proceedings to empanel, 389 
— how trial conducted, 390 
— verdict and entering judgment, 391, 392 
— by and before the Court without jury, 395-407 
—when, defined and explained, 395 
— order proceedings taken, 396 
— what preliminary motions made, 397 
— how issues stated and determined, 398 
— order evidence is introduced, 399 
— manner evidence is introduced, 400 
— objections to evidence, how made, 401 
— what motions made during trial and how, 402 
— argument, how presented, 403 
— court's <lecision, how rendered, 404 
— how findings are waived, 405 
— how findings prepared and form, 406 
— theory of trial, parties bound by, 407 

Trusts 

— parties under different circumstances, 93, 94, 95 

— defined and classified, 621 

— kinils of actions involving, 622 

— action to remove trustee, explained, 623 

— allegations to state, 624 

— provisional remedies, 625 

— defenses, counter-claims, etc., 626 
. — by whom tried, 627 
— action to appoint trustee, explained, 628 

— allegations to state cause, 629 

— defenses, counter-claims, etc., 630 

— provisional remedies, 631 

— i\v whom tried and action, 632 
— actions to preserve trust property, by whom 

brought, 633 

— on contracts by beneficiary, 634 

— by whom to recover trust property diverted, 635 
— actions to enforce trust, by beneficiary, 636 

— character action and venue, 63 7 

— allegations to state cause, 638 

— provisional remedies, 639 

— defenses and counter-claims, 640 
— actions to determine rights of beneficiaries, 641, 

642 

— parties to determine all rights, 643 

— by beneficiary, character action, 644 

— allegations to enforce express trusts, 645 

— allegations to enforce implied trusts, 646 

— allegations to enforce constructive trusts, 647 

— defenses and counter-claims, 048 
— action for accounting by trustee, 650-655 
— trust deeils, enforcement of, 665-677 
see Liens. 



253 



u 



Unlawful Detainer 



See ror(il)le Entry and Detafner, 819-826 



Venue 

— of actions and proceedings defined, CO 
— local, as to states, 61 
— transitory as to states, 62 
— in Superior Court, local as to counties, 63 
— local special proceedings as to counties, 64 
— transitory as to counties, 65 
— proper place for trial of transitory actions, 
— change venue, 6 7-7 7 
— defined, 67 

— grounds for in Superior Court, 68 
— not proper county, general rules, 69 

— procedure, 70 
— impartial trial, procedure, 71 
— convenience to witness, procedure, 72 
— disqualification of Judge, procedure, 73 
— filing counter affidavits, 74 
— of actions in Justice Court, 75 

— change venue, grounds and procedure for, 
— how transferred and effect, 7 7 

Verification 

— of Complaint, when and in what Courts, 14( 
— by whom and defined, 14 7 

Verdict 

— amendment of, 258 

— defined, classified and explained, 391 



— effect of verdicts on entering judgments, 392 
— how reviewed by trial Court, 457 
— new trial, proceedings on, 458-466 
— entering different judgment on, 467-469 

w 

Waste 

— defined and explained, 834 

— action for, character and venue, 835 

— parties to, 836 

— necessary allegations, 837 

— provisional remedies, 838 

— defenses and counter-claim, 839 
66 — by whom tried, judgment, 840 

Witnesses 

— attendance of, how secured by subpoena, 361 

— testimony necessary, 360 
— depositions, when and how taken, 363, 364 
— affidavit of, when may be used, 362 
— examination of, at trial, 400 

Writ of Review 

— defined and explained, 881 
76 — by what courts issued, 882 

— to whom directed, 883 

— on whose application issued, 884 

— contents of application, 885 
I — proceedings to obtain, 886 

— answer or demurrer, 887 

-^ — return to writ, 888 

— contents of writ, 889 

- — on what tried, 890 
» — judgment, contents, 891 



254 



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