페이지 이미지
PDF
ePub

to the credit of the general fund thereof. Said salaries shall be the sole compensation of said city justices.

History: Enactment approved April 1, 1880, Code Amdts. 1880, (C. C. P. pt.), p. 34; amended March 31, 1891, Stats, and Amdts. 1891, p. 456; March 10, 1899, Stats, and Amdts. 1899, p. 88; March 7, 1901, Stats. and Amdts. 1900-1, p. 100; by Code Commission, Act March 8, 1901, Stats, and Amdts. 1900-1, p. 117; Act held unconstitutional, see History, Kerr's Cyc. C. C., $ 4; amended March 19, 1903, Stats. and Amdts. 1903, p. 210; March 3, 1905, Stats. and Amdts. 1905, p. 49; March 11, 1907, Stats. and Amdts. 1907, p. 190, Kerr's Stats. and Amdts. 1906-7, p. 431; February 22, 1909, Stats, and Amdts. 1909, p. 47; April 29, 1911, Stats. and Amdts. 1911, p. 1215; April 2, 1917, Stats, and Amdts. 1917, p. 34. In effect July 27, 1917.

§ 103c. JUSTICES' CLERKS, COUNTIES OF THIRD CLASS. In counties of the third class in townships having a population of more than seventy-five thousand there shall be one justice's clerk, and one deputy justice's clerk, who shall be appointed by the justice of the peace or justices, if more than one. Said clerk and deputy shall be appointed immediately on this act taking effect, and shall take the oath of office prescribed for county officers, and give a bond in the sum of five thousand dollars, conditioned for the faithful discharge of the duties of the office, which bond shall be approved and filed in the same manner as are bonds of county officers.

[Authority.] Such justice's clerk and deputy clerk shall be authorized to administer oaths, take and certify affidavits and shall be authorized to issue and sign writs, summons and all other process in any action or proceeding in the justice's court of the township for which they are appointed or pending before any justice of the peace of said township in the name of the justice before whom the same is pending or out of whose court the same is issued, which shall be in substantially the following form:

Justice of the peace.

Clerk. By

Deputy clerk. All legal papers of every kind in actions or proceedings in such justice's court shall be issued by the said justice's clerk in the manner and form hereinabove set out. The said justice's clerk shall issue, sign and certify to any and all papers, transcripts or records which are required to be issued, signed or certified by the said justice of the peace. All complaints, answers and other pleadings and papers required to be filed in said justice's court shall be filed with such justice's clerk who shall keep a permanent record of all such actions and proceedings in the justice's docket, now provided by law to be kept by the justice. The said clerk shall keep a record of the proceedings of said court and shall have the custody of all records and papers of the same.

All fees for the issuance of all.process, or other fees, which are by law allowed for any official service of the justice of the peace shall be exacted and paid in advance into the hands of the justice's clerk, which, together with all fees, fines, forfeitures or penalties received in said justice's court shall be paid into the county treasury.

[Monthly report.] Said justice's clerk shall render each month to the county auditor and county treasurer, an exact account under oath of all fines, forfeitures, penalties and fees received by him or collected by said court. Said justice's clerk shall receive a salary of one thousand eight hundred dollars per year and said deputy clerk shall receive a salary of one thousand two hundred dollars per year, which shall be payable in like manner and out of the same funds and at like times as county officers are paid. The board of supervisors shall provide in a convenient locality a suitable office for the justice's clerk. The said justice's clerk shall be in attendance at his respective office in the discharge of official business daily from nine a. m. until five p. m.

History: Enactment approved May 31, 1917, Stats. and Amdts. 1917, p. 1394. In effect July 30, 1917.

[ocr errors]

as

a

112.

4. A judge is disqualified from sitting or

acting in an action in which a bank is the 2. —Amendment to amount over $300.

real party in interest, where his brother is The superior court does not have jurisdiction, on an appeal from a justice's court

a director thereof, notwithstanding the ac

tion is brought in the name of a private in an action on a contract to recover less

individual.--Lynip v. Alturas School Disthan three hundred dollars, to allow a com

trict, 29 Cal. App. 158, 155 Pac. 109. plaint to be amended

to state cause of action for a sum in excess of three

5. Where, in such a proceeding, it is inhundred dollars.—Tracy v. Sumida, 31 Cal.

tended to question the corporate character App. 716, 161 Pac. 503.

of the bank, such objection should be made

at the time of the motion, and where not so 3. Error in the allowance of such an amendment can not be reviewed by taking

made its corporate character will be as

sumed.-Lynip v. Alturas School District, 29 an appeal from the judgment of the superior

Cal. App. 158, 155 Pac. 109. court.-Tracy v. Sumida, 31 Cal. App. 716,

6. 161 Pac. 503.

--Time for objection.Where there

is nothing on the face of the record in ad$ 160.

vance of the trial to show that the judge

was disqualified, and such disqualification is 1. Holding court at request of governor- first disclosed on the cross-examination of Construction of section. This section ap

the nominal plaintiff, a motion to disqualify parently makes a distinction between the

the judge and to change the venue is timely disa bility of the judge to act and his dis

and not too late.-Lynip v. Alturas School qualification to act for one of the causes District, 29 Cal. App. 158, 155 Pac. 109. mentioned in section 170; there being a

7. -Subdivision 4-Matter tried on affmarked distinction between the inability

davits alone.--The matter must be tried declared herein and the disqualification de

upon affidavits alone. Inferences or prefined in section 170. This section can not

sumptions arising from the judicial decision be construed to refer to disqualification on

in nowise control. The judge must decide account of interest in the matter involved

upon

the facts averred in the affidavits, in the proceeding.–Yolo Water & Power

without reference to his own knowledge of Co. v. Superior Court, 28 Cal. App. 589, 153

his state of mind.—Keating v. Keating, 169 Pac. 394.

Cal. 754, 147 Pac. 974.

8. The qualifications of a judge to pre$ 170.

side

in

а case where sworn objection is DISQUALIFICATION OF JUDGE.

made on the ground of his alleged preju1, 2. Construction-In general.

dice must be tried on affidavits, and the 3-5. Subdivision 2.

judge must put in the form of an affidavit 6. --Time for objection.

an account of his own state of mind, if his 7-9. -Subdivision 4-Matter tried on a ffi

fairness is called in question. The other davits alone.

side is entitled to have the allegations of 10-18. ---Allegations and contents of a ffi

prejudice traversed by the judge's affidavit davits.

be re there should be a decision on the 19, 20. -Subdivision 5.

motion. This right may, however, be waived. 21-25. ---Amendment of 1915 Constitu

-Mercantile Trust Co. v. Sunset Road Oil tionality.

Co., 173 Cal. 487, 160 Pac. 545.

9. Nondisqualification of the trial judge 1. Construction—In general.-A judge to in a larceny case, as to bias and prejudice, whom is presented an affidavit showing con

is sufficiently sustained by affidavits of the temptuous conduct toward the court is not

deputy district attorney and of the trial disqualified under this section to hear and

judge contradicting the assertion of the determine the proceeding.-Hughes v. Mon

defendant.-People v. Phillips, 30 Cal. App. cur, 28 Cal. App. 462, 152 Pac. 968.

31, 157 Pac. 1003. 2. This section specifies what shall con- 10. -Allegations and contents of affstitute a disqualification of a judge in a davits.- Where a party moving for new proceeding (which includes eminent domain

trial seeks to disqualify the trial judge proceedings) and when the fact of disquali- from hearing the motion on the ground of fication is made to appear, then as expressly his bias and prejudice toward her and her provided in section 398, the disqualified cause of action, his affidavit denying any judge has no discretion other than to per- bias or prejudice is pertinent, and a motion form the duty imposed upon him by this to strike out such parts thereof as disclaim section.--Yolo Water & Power Co. v. Su

any bias or prejudice is properly denied.perior Court, 28 Cal. App. 589, 153 Pac. 394. McEwen v. Occidental Life Ins. Co., 172 Cal. charge of his judicial duty are not evidence lowing the words "real property." It limof bias or prejudice, and a remark made its only the word "work."-Sacramento & upon receipt of the verdict that he did not San Joaquin Drainage Dist. v. Rector, 172 see how the jury could possibly have reached Cal. 385, 156 Pac. 506. such verdict does not show prejudice.—Mc- 20. Construed in connection with section Ewen v. Occidental Life Ins. Co., 172 Cal. 6, 397.-Sacramento & San Joaquin Drainage 155 Pac. 86.

3. -Subdivision 2.-A director of a cor- 6, 155 Pac. 86. poration is an officer within the meaning of 11. Erroneous rulings against a litigant, subdivision 2 of section 170 of the Code of even when numerous and continuous, form Civil Procedure, which provides that a judge no ground for a charge of bias or prejudice, is disqualified from sitting or acting in any especially when they are subject to review. action or proceeding where he is related to -McEwen v. Occidental Life Ins. Co., 172 an officer of a corporation within the third Cal. 6, 155 Pac. 86. degree.-Lynip v. Alturas School District, 29 12. A judge's expressions of opinion utCal. App. 158, 155 Pac. 109.

tered in what he conceives to be the dis

Dist. v. Rector, 172 Cal. 385, 156 Pac. 506. 13. Inconsistency in the demeanor of the 21. -Amendment of 1915 Constitujudge at the time when the verdict was tionality.Subdivision 5 of section 170 of returned with that at the time of the pre- the Code of Civil Procedure, as amended in vious submission of the case to the jury 1915, disqualifying judges from hearing after denying a motion for a directed ver- causes involving real properties, easements, dict in favor of defendant does not prove rights of way and the like, in their respecprejudice.—McEwen v. Occidental Life Ins. tive counties belonging to reclamation, levee, Co., 172 Cal. 6, 155 Pac. 86.

swamp land and drainage districts, and 14. The suggestion of the trial judge authorizing the governor to call in other that the motion for a new trial should judges to hear and determine such causes, be made on the minutes of the court does is not unconstitutional as being a special not show prejudice.—McEwen v. Occidental law as to venue, as it expressly provides Life Ins. Co., 172 Cal. 6, 155 Pac. 86.

that nothing contained in the section "shall 15. The right to ask for a change of affect a party's right to a change of the venue is both granted and limited by the place of trial in the cases provided for in terms of this subdivision. The moving party title IV, part II, of the Code of Civil Procan not include with his statements con- cedure."-Sacramento & San Joaquin Draincerning the judge who is about to try the age Dist. v. Rector, 172 Cal. 385, 156 Pac. 506. case, an attack upon other judges of the 22. Such code amendment is not unconcourt.--In re Lapique, 26 Cal. App. 258, 146 stitutional as being a special law "reguPac. 690.

lating the practice in courts of justice," 16. An attorney, under section 170 of the because it fails to include irrigation, saniCode of Civil Procedure, has a legal right tary, protection, water, lighting, and storm by affidavit to allege any facts showing water districts and other public agencies, the bias or prejudice of the judge against since such districts do not, as a rule, involve his client and thereby disqualify him from operations so vast in an engineering sense hearing the case; and if such facts are as the districts mentioned in the section, material to the issues and state just grounds and therefore there exists a valid distincfor disqualification, the party can not be tion for such classification.-Sacramento & punished for contempt for inserting them San Joaquin Drainage Dist. v. Rector, 172 in his affidavit, even though they may re- Cal. 385, 156 Pac. 506. flect upon the integrity and good faith of 23. The rule undoubtedly is that any the judge.-Webb v. Superior Court, 28 Cal. classification of the sort provided in such App. 391, 152 Pac. 957.

section must be founded upon some good 17. The statement in an affidavit filed by reason and may not rest in the arbitrary an att ey alleging bias and prejudice on will of the legislature, but it is also true the part of the judge against his clients that if good ground for the classification and objecting to his hearing the case, that exists such classification is not void because such judge did advise and direct the attor- it does not embrace within it every other ney for the adverse party to prepare and class which might be included.—Sacramento serve the necessary legal notices upon his

& San Joaquin Drainage Dist. v. Rector, 172 client, noticing a certain motion to rescind

Cal. 385, 156 Pac, 506. and set aside a certain order extending time

24. Such code amendment is not invalid to answer to the amended complaint, is per

because it permits the parties to an action tinent to the issue of prejudice and bias,

to waive the disqualification of the judge and no judgment of conviction for contempt

of the court of the county wherein the subfor the insertion of such statement is war

ject-matter of the suit lies. - Sacramento ranted.-Webb v. Superior Court, 28 Cal.

& San Joaquin Drainage Dist. Rector, 172 App. 391, 152 Pac. 957.

Cal. 385, 156 Pac. 506. 18. The statement, however, in such an

25. Such amendment is not invalid beaffidavit that said judge “has been and now

cause but one drainage district measures is unduly active in prospective litigation

up to its terms.-Sacramento & San Joaquin before this court" is not material to the issue, and the use thereof constitutes con

Drainage Dist. v. Rector, 172 Cal. 385, 156

Pac. 506. tempt of court, where it appears from the testimony of the afflant on the hearing of the contempt proceeding that he did not

8 178. intend to charge "undue activity" only in 1. Right to punish attorney.-The court the case then pending, but general miscon- has not the power to deny the right of a duct of such character.-Webb v. Superior regularly licensed attorney, regularly emCourt, 28 Cal. App. 391, 152 Pac. 957.

ployed by a litigant to represent him in 19. -Subdivision 5. — The phrase "pro- the trial of a case, to participate in such vided for or approved by the reclamation trial, even though such attorney might at board of the state of California" does not some time in the progress of the trial have qualify all of the words including and fol- been guilty of contumacious conduct, and to

Trust Co. v. Ensign-Baker Ref. Co., 29 Cal. App. 642, 157 Pac. 613.

[blocks in formation]

8 186.

1. Abbreviations-Judicial notice.—Courts take judicial notice of the meaning of abbreviations of words commonly used. This is the rule in respect of courts and judicial officers, and is the rule applied in ascertaining the meaning of words shortened in common use by abbreviating them. Abbreviations form part of language and do not differ essentially in their nature from words which, like them, are themselves merely signs of thoughts.-Union Trust Co. v. Ensign-Baker Ref. Co., 29 Cal. App. 641, 157 Pac. 613.

2. The use of the abbreviations “Pres." and "Secy.," in designating the official capacities in which the president and secretary of the corporation maker signed a note, is sufficient to show official capacity.-Union

$187.

1. Carrying jurisdiction into effect-Construction.--Jurisdiction in civil action includes the power to bring before the courts or in some reasonable way to give proper notice to the parties whose rights and interests are to be determined. If there were no enabling statutes prescribing a process to be used the courts could frame suitable writs and direct a reasonable mode of service.—McKendrick v. Western Zinc Min. Co., 165 Cal. 24, 130 Pac. 865.

2. Under this section where an election has been held under the Wyllie Act (Stats. 1911, p. 599), a contest thereunder is not an adversary proceeding. The court may provide a suitable procedure to furnish an interested person to appear at the hearing. Inasmuch as it is provided by law that any elector may contest the declared result of an election, it is implied that the court will permit any other elector to oppose such contest so far as necessary for a just and lawful disposition of that proceeding. Since the court has jurisdiction of the subjectmatter, and the necessary parties can be clearly designated, the authority given by this section includes the right to bring the necessary parties before the court by any suitable process which appears most conformable to the spirit of the code.-Roche v. Superior Court, 30 Cal. App. 255, 157 Pac. 830.

TITLE III.

PERSONS SPECIALLY INVESTED WITH POWERS OF A JUDICIAL NATURE.

JUDICIA

CHAPTER I.

JURORS.

ARTICLE I.

JURORS IN GENERAL.

$ 190. Jury defined.
$ 192. Grand jury defined.
$ 193. Trial jury defined.
8 194. Number of a trial jury.
$ 195. Jury of inquest defined.

$ 190. JURY DEFINED. A jury is a body of persons temporarily selected from the citizens of a particular district and invested with power to present or indict a person for a public offense, or to try a question of fact.

History: Enacted March 11, 1872; amended April 1, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 44; May 29, 1917, Stats. and Amdts. 1917, 1282. In effect July 28, 1917.

8 192.

GRAND JURY DEFINED. A grand jury is a body of persons, nineteen in number, returned in pursuance of law, from the citizens of a county, or a city and county, before a court of competent jurisdiction, and sworn to inquire of public offense committed or triable within the county or city and county.

History: Enacted March 11, 1872; amended March 3, 1876, Code Amdts. 1875-6, p. 86; April 1, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 44; May 29, 1917, Stats, and Amdts. 1917, p. 1282. In effect July 28, 1917.

$ 193. TRIAL JURY DEFINED. A trial jury is a body of persons returned from the citizens of a particular district before a court or officer of competent jurisdiction, and sworn to try and determine by verdict, a question of fact.

History: Enacted March 11, 1872; amended April 1, 1880, Code
Amdts. 1880 (C. C. P. pt.), p. 44; May 29, 1917, Stats, and Amdts. 1917,

In effect July 28, 1917.

p. 1283.

8 194. NUMBER OF A TRIAL JURY. A trial jury shall consist of twelve persons; provided, that in civil actions and cases of misdemeanor, it may consist of twelve or any number less than twelve, upon which the parties may agree in open court.

History: Enacted March 11, 1872; amended April 1, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 44; May 29, 1917, Stats. and Amdts. 1917, p. 1283. In effect July 28, 1917.

8 195. JURY OF INQUEST DEFINED. A jury of inquest is a body of persons summoned from the citizens of a particular district before the sheriff, coroner, or other ministerial officers, to inquire of particular facts.

History: Enacted March 11, 1872; amended April 1, 1880, Code
Amdts. 1880 (C. C. P. pt.), p. 44; May 29, 1917, Stats, and Amdts. 1917,

p. 1283. in effect July 28, 1917. $ 199.

fact was not ascertained before the jury 1. Waiver of right to challenge (subd. 4).

sworn, the right to challenge under - Where the grand jury had been impan- this subdivision must be deemed to have eled before the trial jury, and the trial been waived, and the court did not abuse had proceeded for several days before the its discretion in denying a challenge intercourt's attention was called to the disquali. posed.- Estate of Jones, 166 Cal. 108, 135 fication, and no reason was offered why such Fac. 288.

was

ARTICLE II.

QUALIFICATIONS AND EXEMPTIONS OF JURORS.

$ 201. Who may be excused.

8 201. WHO MAY BE EXCUSED. A juror shall not be excused by a court for slight or trivial causes, or for hardship, or for inconvenience to said juror's business, but only when material injury or destruction to said juror's property or of property entrusted to said juror is threatened, or when said juror's health, or when the health or proper care of said juror's own family, or when the sickness or death of a member of said juror's family make it necessary for said juror to be excused.

History: Enacted March 11, 1872; amended April 1, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 45; May 29, 1917, Stats. and Amdts. 1917, p. 1283. In effect July 28, 1917.

« 이전계속 »