§ 848. TITLE XI. OF PROCEEDINGS IN JUSTICES' COURTS. CHAPTER II. MANNER OF COMMENCING ACTIONS IN JUSTICES' COURTS. 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. § 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: 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 Dated this ...... ...... day of ...... day of 19.... 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. $859. 1. 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. 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 filing.-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. 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. § 862. 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. CHAPTER IV. PROVISIONAL REMEDIES IN JUSTICES' COURTS. ARTICLE II. ATTACHMENT. § 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. 8884. 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. 1. Judgment by default in justice's court. -Where the plaintiff failed to appear the defendant may proceed with the trial until, as provided in section 873, all the issues were disposed of. Inasmuch as a judgment for the defendant was a bar to another action based upon the same claim, the only remedy for the plaintiff was by appeal to the superior court upon issues both of law and of fact and a trial de novo. A judgment in such a case in the superior court will not be annulled in a proceeding for a writ of review upon the ground that the superior court had no jurisdiction to entertain the appeal.-Winnett v. Superior Court, 26 Cal. App. 332, 146 Pac. 1050. that where, under various provisions of the code, notice of decision is required to be given, written notice is usually intended. But under the amendment to this section it is imperatively required.-Peterson v. Superior Court, 30 Cal. App. 466, 158 Pac. 547. 2. A justice's court judgment is not void on its face because of the absence of any affirmative statement therein or in the return of summons that the defendant resided in the county in which he was served (other than that in which the action was brought), where the complaint alleges that the defendant entered into a contract with plaintiff's assignor, which contract is set forth in the form of a written order for certain merchandise signed by the defendant, and it is further alleged that the obligation was incurred and made payable in the county in which the action was brought, and an order setting aside such judgment and dismissing the action is properly annulled.-Roberts v. Justice's Court, 29 Cal. App. 768, 157 Pac. 511. TITLE XIII. OF APPEALS IN CIVIL ACTIONS. 1. Aggrieved party may appeal. The heirs of a deceased incompetent person are entitled to appeal from an order settling the account of the guardian of the incompetent, notwithstanding that there is an administrator appointed of the estate of the incompetent.-Estate of Clanton, 171 Cal. 381, 153 Pac. 459. 2. The state is a party aggrieved and may appeal from a judgment in its favor in an action brought against it to condemn land, notwithstanding that the state in its answer denied any ownership in the land, and declared that it belonged to the United States.-Pacific Power Co. v. California, 31 Cal. App. 719, 162 Pac. 641. 3. Any person having an interest recognized by law in the subject-matter of the judgment, which interest is injuriously affected by the judgment, is a party aggrieved and entitled to be heard upon appeal.-Mono County Irr. Co. v. State, 31 Cal. App. 719, 162 Pac. 641. 4. In an action brought by a public service corporation against the state of California to condemn for public use school lands alleged to be owned by the state and situated within the boundaries of a national forest reservation, the state is not a party aggrieved by a judgment rendered in its favor for damages, where the state in its answer, at the trial, and at all times contended that it had no interest in the lands, but that the same belonged to the United States, and its only object in presenting the appeal was to protect the interest of the United States.-Mono County Irr. Co. V. State, 31 Cal. App. 719, 162 Pac. 641. § 939. WHEN APPEAL MAY BE TAKEN. 1-4. Construction-As amended in 1915. 5-10. Time of taking appeal. 1. Construction-As amended in 1915.The time within which an appeal may be taken from a judgment was extended, as provided in section 939 of the Code of Civil Procedure, as amended in the year 1915, to enable a party to have reviewed on such appeal the failure or refusal of the trial court to grant his motion for a new trial, amendments of our laws in other respects made at the same time having the effect of abolishing the right of appeal from an order denying a new trial which theretofore existed.-Lancel v. Postlethwaite, 172 Cal. 326, 156 Pac. 486. 2. new Proceedings on a motion for a trial are "terminated in the trial court" within the meaning of section 939 of the Code of Civil Procedure, where the last day of the three months within which an order determining the motion for a new trial could legally have been made fell upon a Saturday, as the provision of section 12 of the Code of Civil Procedure that in computing time the "last day" is to be excluded when such day is a "holiday," contemplates that the whole of such day be a holiday, and not a portion thereof, which Saturday is declared to be by section 10 of such code.Lancel v. Postlethwaite, 172 Cal. 326, 156 Pac. 486. 3. This section as amended in 1915 does not enlarge the right of a party to appeal in cases other than those specified in sec tion 963.-Hester v. McMullan, 29 Cal. App. 664, 157 Pac. 521. 4. An order granting a motion for a nonsuit although not followed by a formal order of dismissal is a final judgment within the meaning of this section.-Commins v. Guaranty Oil Co., 29 Cal. App. 139, 154 Pac. 882. 5. Time of taking appeal.-Where in fact a final judgment was entered although it was styled an interlocutory judgment or decree, the appellate court may consider the appeal, only from the fact that it was really a final judgment, for the statute does not permit an appeal from an interlocutory judgment except in the cases specified herein.-Fay v. Fay, 165 Cal. 469, 132 Pac. 1040. 6. An appeal from a judgment taken more than six months after the entry thereof is not entitled to consideration.-Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562. 7. An appeal from a judgment must be dismissed on the ground that it was not taken within the time allowed by law, where the notice of appeal was not filed until two days after the expiration of the thirty-day period immediately following the expiration of the three-month period allowed by the statute for the determination of the motion for new trial. Lancel v. Postlethwaite, 172 Cal. 326, 156 Pac. 486. 8. On an appeal from a judgment taken within sixty days the sufficiency of the evidence may be considered as well as the alleged errors of law occurring at the trial. -Vore v. Ephraim, 173 Cal. 245, 159 Pac. 719. 9. An appeal taken from a judgment entered on motion against the surety on an undertaking on appeal is too late, and must be dismissed, where the notice of appeal was not filed within sixty days after the entry of the judgment, regardless of the fact that such notice was filed within thirty days after the termination in the trial court of proceedings on motion for new trial.Gray v. Cotton, 53 Cal. Dec. 98, 162 Pac. 1019. 10. An appeal taken from a judgment entered upon default six months prior to the date of the taking of the appeal is abortive. Snyder v. Miller, 29 Cal. App. 566, 157 Pac. 22. § 940. HOW APPEAL TAKEN. 1. Construction of section. 2, 3. Construction of notice of appeal. 4-6. Alternative or new method of appeal. 1. Construction of section.-An order appointing an executor or administrator is one of such character that its effect is stayed by the taking of an appeal, and the filing of a three-hundred-dollar bond under section 941.-Estate of Stough, 173 Cal. 638, 161 Pac. 1. 2. Construction of notice of appeal.-A liberal rule of construction must be applied to notices of appeal in order to effectuate the rights of the parties to an appeal. Hopkins v. Sanderson, 29 Cal. App. 666, 159 Pac. 1064. 3. Where judgment for the full amount claimed is recovered against one defendant. and for a portion only of the claim against two other defendants, the first defendant is not an adverse party requiring notice of an appeal by the two defendants.-Wilson v. Shea, 29 Cal. App. 788, 157 Pac. 543. 4. Alternative or new method of appeal. -Where the appeal from a judgment is taken within sixty days after rendition and entry, the sufficiency of the evidence may be reviewed as effectually as upon an appeal from the order refusing a new trial. And this is so whether the appeal is taken under this section or under the method prescribed by sections 941a, 941b, and 941c.Cortelyou v. Imperial Land Co., 166 Cal. 14, 134 Pac. 981. As to alternative or new method of appeal, see post, sections 941a-941c, 953a-953c and notes. 5. An attempt to appeal under this section is ineffectual and invalid unless the notice was served on all the parties to the action. It was the extreme technicality prevailing under this section and the frequent dismissal of appeals resulting therefrom that caused the enactment of sections 941a, 941b, and 941c. This section does not prescribe the form of notice except that in an appeal from a judgment or order it must be "a notice stating the appeal from the same, or some specific part thereof." No formal address was required.-Southern Pac. Co. v. Superior Court, 167 Cal. 250, 139 Pac. 69. 6. Where the appeal is from a specific part of the judgment only the appellate court will ordinarily review only the part appealed from, leaving all the other parts of the judgment in full force. Such an appeal confers no jurisdiction to review any part of the judgment except that to which the appeal is directed.-Ganahl Lumber Co. v. Weinsveig, 168 Cal. 664, 143 Pac. 1025. |