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oral statement, under oath or affirmation, is embraced by the term “testify," and every written one in the term “ depose;" signature or subscription includes mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.

The following words also have in this code the signification attached to them in this section, unless otherwise apparent from the context: Property defined.

1. The word “property” includes both real and personal property. Real property.

2. The words “real property" are coextensive with lands, tenements and hereditaments. Personal property.

3. The words “ personal property" include money, goods, chattels, things in action, and evidences of debt. Month.

4. The word “ month” means a calendar month, unless otherwise expressed.

Will.

5. The word "will" includes codicils. Writ.

6. The word “ writ” signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer, and the word “ process" a writ or summons issued in the course of judicial proceedinge. . State.

7. The word “state,” when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words “ United States” may include the district and territories. (Amendment, approved March 24, 1874; Amendments 1873–4, 280; took effect July 1, 1874.(a) 10,018. Statutes, etc., inconsistent with code repealed.

Sec. 18. No statute, law, or rule is continued in force because it is consistent with the provisions of this code on the same subject; but in all cases provided for by this code, all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are repealed and abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any action or proceeding already taken, except as in this code provided; nor does it affect any private statute not expressly repealed.

(a) Original section:

may include the district and territories. 9. When the Sec. 17. Whenever the terms mentioned in this sec- term " person " is used in this code to designate the tion are employed in this code they are employed in party whose property may be the subject of any offense, the senses hereafter affixed to them, except where & action, or proceeding, it includes this state, any other different sense plainly appears: 1. The term signa state, government, or country which may lawfully own ture "inclades any lame, mark, or sign, written with any property within this state, and all public and intent to anthenticate any instruinent or writing. 2. private corporations or joint associations, as well as The term "writing" includes both printing and writ- individuals. 10. The word " person" includes bodies ing. 3. The term land," and the phrases * real politic and corporate. 11. The singular number inestate” and “real property," includes lands, tene- cludes the plural, and the plural the singular. 12. ments, and hereditaments, and all riguts thereto, and Words used in the masculine gender comprehend us interests therein. 4. The words " personal property " well the feminine and neuter. 13. Words used in the include money, goods, chattels, evidence of debt, and present tense include the future, but exclude the past. * things in action." 5. The word "property” includes 14. The word "will" includes codicils. 15. The word personal and real property. 6. The word " onth" " writ" signifies an order or precept in writing, issued ineans a calendar month, unless otherwise expressed; in the name of the people, or of a court, or judicial and the word "year," and also the abbreviation " A.D.," officer. 16. " Process" is a writ or summons issued in is equivalent to the expression " year of our Lord." the course of judicial proceedings. 17. The word 7. The word “ oath" includes "affirmation" in all "vessel," when used with reference to shipping, incascs where an affirmation may be substituted for an cludes ships of all kinds, steamboats, and steamships, oath; and in like cases the word “swear" includes the canal boats, aud every structure adapted to be navi. word "affirm." Every mode of oral statement under gated froin place to place. 18. The term "peace offoath or affirmation is embraced by the term " testify," cer” signifies any one of the officers mentioned in secand every written one in the term " depose." 8. The tion 817 of the Penal Code. 19. The term “magisword "state," when applied to the different parts of trate " signifies any one of the officers mentioned in the United States, includes the District of Columbia Section 808 of the Penal Code. and the territories: and the words - United States"

10,019. This act, how cited, enumerated, etc.

Sec. 19. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as “ The Code of Civil Procedure," adding, when necessary, the number of the section. 10,020. Judicial remedies defined.

Sec. 20. Judicial remedies are such as are administered by the courts of justice or by judicial officers empowered for that purpose by the constitution and statutes of this state. 10,021. Division of judicial remedies.

Sec. 21. These remedies are divided into two classes: 1. Actions; and,

2. Special proceedings. 10,022. Action defined.

Sec. 22. An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. 10,023. Special proceeding defined.

Sec. 23. Every other remedy is a special proceeding. 10,024. Divisions of actions.

Sec. 24. Actions are of two kinds: 1. Civil; and,

2. Criminal. 10,025. Civil actions arise out of obligations or injuries.

Sec. 25. A civil action arises out of: 1. An obligation;

2. An injury. 10,026. Obligation defined.

Sec. 26. An obligation is a legal duty, by which one person is bound to do or not to do a certain thing, and arises from:

1. Contract; or,

2. Operation of law. (Amendment, approved March 24, 1874; Amendments 1873–4, 281; took effect July 1, 1874.(a) 10,027. Division of injuries.

Sec. 27. An injury is of two kinds: 1. To the person; and,

2. To property. 10,028. Injuries to property.

Sec. 28. An injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it. 10,029. Injuries to the person.

Sec. 29. Every other injury is an injury to the person. 10,030. Civil action, by whom prosecuted.

Sec. 30. A civil action is prosecuted by one party against another for the enforcement or protection of a right, or the redress or prevention of a wrong. 10,031. Criminal actions.

Sec. 31. The Penal Code defines and provides for the prosecution of a criminal action. 10,032. Civil and criminal remedies not merged.

Sec. 32. When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.

(a) Original section:

another, and arises from: 1. The contract of the par. SEC. 26. An obligation is a legal duty, by which one ties; or, 2. The operation of law. person is bound to the performance of an act towards

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THI. OF THE

: : : :

CHAPTER I. OF COURTS OF JUSTICE IN GENERAL ......

10,033 II. OF THE COURT FOR THE TRIAL OF IMPEACHMENTS ..

10,035 III. OF THE SUPREME COURT .............

10,040 IV. OF THE DISTRICT COURTS ............

10,054 V. OF THE COUNTY COURTS ........ .

. 10,082 VI. OF THE PROBATE COURTS ........

10,094 VII. OF THE MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO 10,104 VIII. OF JUSTICES' Courts.

10,112 IX. OF POLICE Courts ............

10,121 X. GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE........ 10,124

28

CHAPTER I.

COURTS OF JUSTICE IN GENERAL.
10,033. The several courts of this state.

Sec. 33. The following are the courts of justice of this state:
1. The court for the trial of impeachments;
2. The supreme court;
3. The district courts;
4. The county courts;
5. The probate courts;
6. The municipal criminal court of San Francisco;
7. The justices' courts;

8. The police courts.
10,034. Courts of record.

Sec. 34. The courts enumerated in the first six subdivisions of the preceding section are courts of record.

CHAPTER II.
OF THE COURT FOR THE TRIAL OF IMPEACHMENTS.
10,035. Members of the court.

Sec. 35. The court for the trial of impeachments is composed of the members
of the senate, or a majority of them.
10,036. Jurisdiction.

Sec. 36. The court has power to try impeachments, when presented by the assembly, of the governor, lieutenant-governor, secretary of state, controller, treasurer, attorney-general, surveyor-general, justices of the supreme court, and judges of the district courts, for any misdemeanor in office. 10,037. Officers of the court.

Sec. 37. The officers of the senate are the officers of the court. 10,038. Trial of impeachments provided for in Penal Code.

Sec. 38. Proceedings on the trial of impeachments are provided for in the Penal Code. (See post, 13,737.]

10,040-10,045

CODE OF CIVIL PROCEDURE.

26

CHAPTER III.

OF THE SUPREME COURT. 10,040. Members of the court.

SEC. 40. The supreme court consists of a chief justice and four associate justices, elected at the judicial elections, and holding their offices for the term of ten years from the first day of January next after their election. 10,041. Chief justice.

SEC. 41. The justice having the shortest term to serve is the chief justice.

An Act to determine who must act as chief justice of the supreme court.

Approved March 14, 1872; 1871-2, 364.
Who chief justice.

Section 1. That justice of the supreme court, elected by the people, who has
the shortest term to serve under his commission, is the chief justice after the
expiration of the term of the present chief justice.
Lot, when two equally entitled.

SEC. 2. In case two or more of the justices of the supreme court shall be
equally entitled to the office of chief justice after the expiration of the term of
the present chief justice, and neither of the two shall voluntarily and in writing
waive his right to be such chief justice, then such justices shall determine by
lot which of them shall hold such office, and a record of the allotment or
waiver shall be entered in the minutes of the court, and a certified copy thereof
shall be transmitted to the secretary of state, and be filed in his office.
10,042. Jurisdiction of two kinds.

SEC. 42. The jurisdiction of this court is of two kinds:
1. Original; and,

2. Appellate.
10,043. Original jurisdiction.

Sec. 43. The supreme court has also power to issue writs of mandamus, cer-
tiorari, prohibition, and habeas corpus, and also all writs necessary or proper
to the complete exercise of its appellate jurisdiction. (Amendment, approved
March 24, 1874; Amendments 1873-4, 281; took effect July 1, 1874.(a)
10,044. Appellate jurisdiction.

Sec. 44. Its appellate jurisdiction extends:
1. To all civil actions for relief formerly given in courts of equity;

2. To all civil actions in which the subject of litigation is not capable of pecuniary estimation;

3. To all civil actions in which the subject of litigation is capable of pecuniary estimation which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars;

4. To all special proceedings;
5. To all cases arising in the probate courts; and,

6. To all criminal actions amounting to felony, on questions of law alone. 10,045. May reverse, affirm, or modify, etc., remittitur.

Sec. 45. The court may reverse, affirm, or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. Its judgment must be remitted to the court from which the appeal was taken.

(a) Original section:

corpus, and all writs necessary to the exercise of its SEC. 43. Its original jurisdiction extends to the issue appellate jurisdiction, ance of writs of mandate, review, prohibition, habeas

COURTS AND JUDICIAL OFFICERS.

10,046–10,050

10,046. Number of judges necessary for the transaction of business.

Sec. 46. The presence of three justices is necessary for the transaction of business, but one or more of the justices may transact such business as can be done at chambers, and may adjourn the court from day to day, with the same effect as if all were present. 10,047. Number to pronounce judgment.

Sec. 47. The concurrence of three justices is necessary to pronounce a judgment; if three do not concur, the case must be reheard. 10,048. Court always open for certain purposes.

Sec. 48. For the purpose of issuing writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction, filing opinions, and entering orders and judgments, this court is always open and in session. 10,049. Terms, when held.

Sec. 49. There must be four terms in each year, for the hearing of causes, to commence on the second Monday of January, April, July, and October. Additional terms may also be held by order of the court. 10,050. Terms of Supreme Court, where held.

Sec. 50. The April and October terms of this court shall be held at the capital of the state. If proper rooms in which to hold the court, and for the accommodation of the officers thereof, are not provided by the state, together with attendants, furniture, fuel, lights, and stationery, suitable and sufficient for the transaction of business, the court may direct the sheriff of the county in which it is held to provide such rooms, attendants, furniture, fuel, lights, and stationery, and the expenses thereof, certified by a majority of the justices to be correct, must be paid out of the state treasury. The January and July terms of this court may be held at the city and county of San Francisco, provided the board of supervisors thereof, at the discretion of said board, shall procure and maintain, at the expense of said city and county, rooms and furniture acceptable to the justices of said court for the accommodation of the business thereof, and of its respective officers, together with necessary attendants, fuel, and lights; and the board of supervisors of said city and county are hereby authorized to appropriate all necessary funds to defray the expenses aforesaid, payable out of the general fund of said city and county. If the said board of supervisors shall accept the provisions of this act, and procure the necessary rooms and furniture at said city and county for the accommodation of said court and its officers, then it shall be the duty of said board to permanently maintain such rooms and furniture, together with the necessary attendants, fuel, and lights; and upon the failure of said board so to do, after having accepted the provisions of this act as aforesaid, the court may direct the sheriff of said city and county to provide such rooms, furniture, fuel, and lights; and the expenses thereof, certified by a majority of the justices to be correct, shall be a charge against said city and county, and must be paid out of the general fund thereof. Until such time as the board of supervisors of said city and county shall accept the provisions of this act, the January and July terms of this court shall continue to be held at the capital of the state; provided, that in no event shall the state hereafter be put to any additional expense of any kind, character, or nature, by reason of the holding of any term or terms of said court, at said city and county of San Francisco. (Amendment, approved March 30, 1874; Amendments 1873–4, 395; took effect from passage; repealed all inconsistent acts.(a)

the expenses the rooms, atten direct the shetable and sugether lo

la) Original section:

the court, and for the chambers of the justices, are not SFC. 60. The terms of this court must be held at the provided by the state, together with attendants' furni. capital of this state. If proper rooms in which to hold ture, fuel, lights, and stationery, suitable and suffi

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