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decision, some of the common owners made hence do not preserve the rights of all pardeeds purporting to convey to third per- ties in interest, objection to their report sons, in severalty, the whole title to speci will afford ample remedy to the party claimfic parcels of the common land, it is not ing to be aggrieved thereby.-Rich v. Smith, error, so far as such an appealing tenant 26 Cal. App. 775, 148 Pac. 545. is concerned, to open the case after the evidence had been closed and the cause $ 766. submitted, and allow proof to be made of
1. Decree, effect of.-A decree in partisuch conveyances, as they involved only the
tion has no other effect than to sever the relative rights of the grantees and grantors in the share set apart by the partition to
unity of possession, and does not vest in
either of the cotenants any new or addithe grantors.—East Shore Co. v. Richmond Belt R., 172 Cal. 174, 155 Pac. 999.
tional title.—Potrero Nuevo Land Co. v.
All Persons, 29 Cal. App. 743, 156 Pac. 876. $763.
$ 783. 1. Partition-Sale when.-There is a pre
1. Who may purchase.--The rule forbidsumption that land held in common tenancy
ding a trustee to purchase at his own sale can be equitably divided. It is only where
does not apply to a purchase at a partition the contrary "appears by the evidence" that a sale may be ordered. Therefore one who,
sale, made pursuant to a decree in equity
of a court of foreign jurisdiction, which upon appeal, contends for a sale, instead of
has acquired jurisdiction of the parties, nota partition as ordered, must show that it
withstanding the property was distributed appears by the evidence that a partition
"in trust" in a probate proceeding by a would prejudice the owners. The burden
court of this state.--Plant v. Plant, 171 Cal. of proof to show such prejudice rests on
765, 154 Pac. 1058. him.-East Shore Co. v. Richmond Belt R., 172 Cal. 174, 155 Pac. 999.
$ 784. $ 764.
1. Objections, time for.—The time for a 1. As to method of partition.--The gran
cotenant to make objections to findings in tee of each parcel is entitled to have the
partition is when the report of the referees
is made to the court.—East Shore Co. v. same set off to him out of the share of his
Richmond Belt Ry., 172 Cal. 174, 155 Pac. grantor, if it can be done without injury to the other tenants in common; but, the
999. fact that he owns contiguous land which will make his ownership of the specific par
$ 785. cel more advantageous to him, can not jus 1. Title of purchaser.-The sale under a tify the allotment thereof to him, if to do so partition decree is a judicial sale, and the would in fact materially injure another ten rule in execution sales is applicable that ant in common.-East Shore Co. v. Richmond the purchaser "takes the precise interest of Belt Ry., 172 Cal. 174, 155 Pac. 999.
the defendant, and after-acquired title by 2. Contribution and subrogation. In the the seller does not pass to the purchaser." event that foreclosure proceedings become --Potrero Nuevo Land Co. V. All Persons, necessary by reason of the failure of the 29 Cal. App. 743, 156 Pac. 876. owners in severalty of the mortgaged prop 2. Under a partition sale made by the erty to contribute equally to the payment of holders of ninety-nine year terms in beach the mortgage debt, the particular owner and water lots of the city and county of who may be compelled to pay the entire San Francisco, the purchasers acquire the debt will be rightfully and readily subro interests of the partitioners at the time and gated, to the extent of the excess payment, nothing more, and the purchase by one of to the interests of the mortgagee in a proper them subsequent to the partition sale of proceeding instituted for that purpose.--- the reversionary interests of the state Rich v. Smith, 26 Cal. App. 775, 148 Pac. therein, does not inure to the benefit of his 545.
copurchasers.—Potrero Nuevo Land Co. v. 3. When one tenant in common has paid All Persons, 29 Cal. App. 743, 156 Pac. 876. a debt or obligation for the benefit of the joint property, or has discharged a lien or $ 802. assessment imposed upon it as a common
1. Scire facias.-While it is true that burden, he is entitled as matter of right to
scire facias for the purpose of obtaining have his cotenant, who has received the
execution is ordinarily a judicial writ to benefit of it, refund to him his proportion
continue the effect of the former judgment, ate share of the amount paid, and it is proper
yet it is in the nature of an action because to provide in the decree of partition that
the defendant may plead to it, and in many the share of the latter be charged with a
cases it has been classified as, in substance, lien therefor.-Rich v. Smith, 26 Cal. App.
a new action. Thomas v. Lally, 28 Cal. App. 775, 148 Pac. 545.
308, 152 Pac. 53.
2. A judgment upon a scire facias is in $ 765.
legal effect a new judgment, and the statute 1. Objection to referee's report. Where of limitations begins to run from its date referees in partition proceedings do not anew.-Thomas v. Lally, 28 Cal. App. 308, comply with the interlocutory decree, and 152 Pac. 53.
pend upon possession of the boat, but exists
by virtue of the statute and continues one 1. Quo warranto-Nature of remedy.-A
year. While the law gives the lien it makes quo warranto proceeding to oust one charged with wrongfully and without auth
no provision for its enforcement other than
by an action brought or attachment sued ority exercising the powers of a public
out as in section 817.-Graham v. Annis, 28 office is not simply a civil remedy, but one wherein the interests of the public are
Cal. App. 754, 153 Pac. 981. involved.-People v. Bailey, 30 Cal. App. 581,
2. One who performs labor or furnishes 158 Pac. 1036.
materials in the construction, repair or 2. -Laches, effect of. A quo warranto
equipment of a steamer, vessel or boat is not proceeding prosecuted by the attorney gen. required to resort to the special proceedings eral for the purpose of having it determined provided by sections 813 et seq. of the Code that one has unlawfully intruded into and
of Civil Procedure to enforce the payment is unlawfully holding a public office, is not
of his demands, but may bring an ordinary barred by lapse of time, and as the action
action against the owner therefor, and is can only be brought with the consent and not barred from availing himself of the permission of the attorney general, it is to general law relating to attachments, on the be assumed that he will not exercise his assumption that the debt is "secured by discretion to not permit the institution of mortgage or lien upon real or personal such a suit if by reason of a great lapse
property, or pledge of personal property."of time the claim has become stale, or for
Graham v. Annis, 28 Cal. App. 754, 153 Pac. any other reason the state has ceased to
981. have a present interest in it.-People v. 3. The lien given by the code provisions Bailey, 30 Cal. App. 581, 158 Pac. 1036.
and the right to enforce it continue for 3. The right to prosecute a quo warranto one year, as between the party who perproceeding to determine the right to a pub forms labor or furnishes material in the lic office is not barred by laches, where the building or repair and the owner of the record shows that the relator had at all vessel, but, unless fixed and determined by times been actively asserting his right to action brought, it is but a floating right.the office, but by a mistaken remedy.-Peo- Graham v. Annis, 28 Cal. App. 754, 153 Pac. ple v. Bailey, 30 Cal. App. 581, 158 Pac. 1036. 981. § 805.
8 817. 1. Scope of judgment.--The court may
1. Attaching vessel - Construction. — provide not only for the removal of the defendant but for the restoration to otce
There is nothing herein to prevent a meof the relator.-People v. Bailey, 30 Cal.
chanic or laborer from bringing an ordinary
action against the owner of a vessel for App. 581, 158 Pac. 1036.
labor or materials in the repairs of a vessel 813.
and obtaining judgment and enforcing it by 1. Actions against vessels-Construction
execution as in ordinary cases.-Graham v. of section.The lien declared does not de
Annis, 28 Cal. App. 754, 153 Pac. 981.
$ 850. Notice of hearing.
1. Action in justice's court-Service made outside of county (subd. 2).—Where a sheriff is called upon to justify the levying of an execution as a result of a judgment rendered by default made upon service of a summons made outside the county, it must be affirmatively shown that the justice's court had jurisdiction. In making such proof it is essential to show that the action was such
as is provided in this subdivision, which alone would warrant the service of the summons outside the county.-Newman v. Barnet, 165 Cal. 423, 132 Pac. 588.
2. The burden of proof is upon the defendant to show that he was not a resident of the county where he was served, on a motion to set aside a judgment by default.Roberts v. Justice's Court, 29 Cal. App. 768, 157 Pac. 511.
8 850. NOTICE OF HEARING. When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix the day for the trial of said cause, whether the issue is one of law or fact, and give notice thereof to the parties to the action who have appeared, but in case any of the parties are represented by an attorney, then to such attorney; provided, however, that where a party has appeared in person, such party shall leave with the justice or justice's clerk, and the same shall be entered upon the register in the action, an address where service of the notice of hearing of such matter may be made; provided, further, that such notice shall be personally served on said person if he can be found at said address, but in case said person can not, after due diligence, be found at said address and such fact appears by affidavit to the satisfaction of the court or a judge thereof, then the service of such notice may be by registered mail and in the manner hereinafter provided for service of notice by mail. Such notice shall be in writing, signed by the justice, and substantially in the following form, filling blanks according to the facts:
[Form of notice.] In the justice court, .............. township (or city, or city and county), county, or city and county of ....
.., State of California. ..... plaintiff, vs. ........ .......... defendant. To ..................... plaintiff, or ........................ attorney for plaintiff, and to defendant, or .....
.......... attorney for defendant. You and each of you will please take notice that the undersigned justice of the peace before whom the above-entitled cause is pending, has set for hearing the demurrer of
.., filed in said cause (or has set the said cause for trial, as the case may be), before me at my office in said township (or city, or city and county), at ...... o'clock ......m., on the ........ day of .................. 19.... Dated this ........ day of ......... ..........., 19.... (Signed) ......
Justice of the peace. [Service of notice.] Said notice shall be served by mail or personally. When served by mail the justice of the peace shall deposit copies thereof in a sealed envelope in the post office at least ten days before the trial or hearing addressed to each of the persons on whom it is to be served at their place of residence and the postage prepaid thereon;
[Service by mail.] provided, that such notice shall be served by mail only when the person on whom service is to be made resides out of the county in which said justice's court is situated, or is absent therefrom or has appeared in person. When personally served said notice shall be served at least five days before the trial or hearing on the persons on whom it is to be served by any person competent and qualified to serve a summons in a justice's court, and when personally served it shall be served, returned and filed in like manner as a summons. When a party has appeared by attorney the notice may be served in the manner prescribed by subdivision one of section one thousand eleven of this code.
[Docket entries.] The justice shall enter on his docket the date of trial or hearing; and when such notice shall have been served by mail the justice shall enter on his docket the date of mailing such notice of trial or hearing and such entry shall be prima facie evidence of the fact of such service. The parties are entitled to one hour in which to appear after the time fixed in said notice, but are not bound to remain longer than that time unless both parties have appeared and the justice being present is engaged in the trial of another cause.
History: Enacted March 11, 1872; amended April 3, 1876, Code Amdts. 1875-6, p. 199; by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 168; Act held unconstitutional, see History, Kerr's Cyc. C. C., $ 4; amended March 23, 1901, Stats. and Amdts. 1900-1, p. 598; March 1, 1905, Stats. and Amdts. 1905, p. 33; April 16, 1909, Stats, and Amdts. 1909, p. 968; May 20, 1913, Stats, and Amdts. 1913, p. 234; May 24, 1917, Stats, and Amdts. 1917, p. 190. in effect July 27, 1917.
4. The time to file an application under section 859 of the Code of Civil Procedure to be relieved from a judgment entered by default in a justice's court on the ground that such judgment had been taken by mistake, inadvertence, surprise and excusable neglect, begins to run from service of written notice of entry of the judgment as required by section 893 of such code, as amended in 1915.-Arbogast v. Superior Court, 32 Cal. App. 372, 162 Pac. 909.
1. Application to set aside default.Upon an application made to set aside a default judgment in a justice's court, it is error to grant the application without making the order conditional upon the payment of plaintiff's costs, but the failure to impose such condition does not, however, divest the justice's court of jurisdiction to proceed with the cause.—Arbogast v. Superior Court, 32 Cal. App. 372, 162 Pac. 909.
2. Such written notice of entry of judgment is required in cases where personal service of the summons and complaint is made, as in cases where there has been a constructive service of summons.--Arbogast v. Superior Court, 32 Cal. App. 372, 162 Pac. 909.
3. —Time for fling.-An application for relief hereunder from a default judgment must not only be filed but must be called up for action by the court and the court moved to grant it within ten days after notice of the decision has been served on the losing party. The time to file the application begins to run from the service of the notice required by section 893, and the service of such notice is not waived by the mere preparation of affidavits to be used upon the application to be relieved.-Peterson v. Superior Court, 30 Cal. App. 466; 158 Pac. 547.
1. Affidavit for arrest, sufficiency of.The person making the affidavit upon which an order of arrest in a civil action is asked may follow the statute and declare in positive terms that the defendant is about to depart from the state with intent to defraud his creditors, or he may set up the facts which will warrant the judge in concluding such to be the intent of the defendant. In either case the affidavit is sufficient, --In re Caples, 26 Cal. App. 786, 148 Pac. 795.
2. An affidavit for arrest in a civil action which recites that the defendant is about to leave the state, with the intent to defraud his creditors, is sufficient, without stating the facts constituting the evidence from which the intent is to be deduced.In re Caples, 26 Cal. App. 786, 148 Pac. 795.
PROVISIONAL REMEDIES IN JUSTICES' COURTS.
§ 868. Writ of attachment, to whom directed.
§ 868. WRIT OF ATTACHMENT, TO WHOM DIRECTED. The writ may be directed to the sheriff or any constable of the county in which such justice court is situate and must require him to attach and safely keep all of the property of the defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand against the defendant, the amount of which must be stated in conformity with the complaint, unless the defendant, whose property has been or is about to be attached, give him security by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand against such defendant besides costs; in which case to take such undertaking;
[Keeper). provided, however, that whenever a levy shall be made upon personal property, other than money, belonging to a going concern, then the sheriff must, if the defendant consents, place a keeper in charge of said attached property at plaintiff's expense for at least two days or more, and said keeper's fees must be prepaid by the attaching creditor. After the expiration of said two days, the sheriff shall take said property into his immediate custody, unless other disposition is made by the court or parties.
[If more than one defendant.] In the event that the action is against more than one defendant, any defendant whose property has been or is about to be attached in such action may give the sheriff such undertaking, and the sheriff shall take the same, and such undertaking shall not subject such defendant to or be answerable for any demand against any other defendant, nor shall the sheriff thereby be prevented from attaching or be obliged to release from attachment, any property of any other defendant; provided, however, that such defendant, at the time of giving such undertaking to the sheriff, shall file with the sheriff a statement duly verified under oath, wherein such defendant shall aver and declare that the other defendant or defendants in the action in which said undertaking was given has or have not any interest or claim of any nature whatsoever in or to said property. Such statement must further contain the character of such defendant's title and the manner in which he acquired title to such attached property.
[Service out of county. Several writs may be issued at the same time to the sheriffs or constables of different counties; provided, that where a writ of attachment issued by a justice of the peace is to be served out of the county in which it was issued, the writ of attachment shall have attached to it a certificate under seal by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace of said county at the date of the writ.
History: Enacted March 11, 1872, re-enactment of $ 554, Practice Act; amended March 18, 1905, Stats, and Amdts. 1905, p. 208; April 22, 1915, Stats. and Amdts. 1915, p. 112; May 26, 1917, Stats. and Amdts.
1917, p. 939. In effect July 27, 1917. $ 884.
the superior court upon issues both of law 1. Judgment by default in justice's court. and of fact and a trial de novo. A judgment -Where the plaintiff failed to appear the in such a case in the superior court will not defendant may proceed with the trial until, be annulled in a proceeding for a writ of as provided in section 873, all the issues review upon the ground that the superior were disposed of. Inasmuch as a judgment court had no jurisdiction to entertain the for the defendant was a bar to another appeal.-Winnett v. Superior Court, 26 Cal. action based upon the same claim, the only App. 332, 146 Pac. 1050. remedy for the plaintiff was by appeal to