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Notice of motion.
Ilearing of motion may be transferred.
Notices, etc., how served.
Service, how made.
Sec. 517. When a written notice of a motion is necessary, it shall be given, if the court be held in the same district with both parties, five days before the time appointed for the hearing; otherwise ten days, but the court, or judge, or county judge, may prescribe a shorter time. (1)
Sec. 518. When a notice of a motion is given, or an order to show cause is made returnable before a judge out of court, and at the time fixed for the motion, or on the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge, before whom it might originally have been brought.
Sec. 519. Written notices and other papers, when required to be served on the party or attorney, shall be served in the manner prescribed in the next three sections, when not otherwise provided; but nothing in this title shall be applicable to original or final process, or any proceedings to bring a party into contempt.
Sec. 520. The service may be personal, by delivery to the party or attorney, on whom the service is required to be made, or it may be as follows:
1st. If upon an attorney, it may be made during his absence from his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open, so as to admit of such service, then by leaving them at the attorney's residence, with some person of suitable age and discretion ; and if his residence be not known, then by putting the same, enclosed in an envelope, into the post-office, directed to such attorney.
2d. If upon a party, it may be made by leaving the notice or other paper at his residence between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion; and if his residence be not known, by putting the same, enclosed in an envelope, into the post-office directed to such party.
Sec. 521. Service by mail may be made, where the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail.
Sec. 522. In case of service by mail, the notice or other paper all be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. And in such case, the time of service shall be increased one day for every
Service by mail.
(1) Amendment inserted from Stat. 1853, page 278.
may be made on the clerk or attorney.
actions on one
twenty miles distance between the place of the deposit and the place of the address.
Sec. 523. A defendant shall be deemed to appear in an action when What deemed he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. After appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him, unless he be imprisoned for want of bail.
Sec. 524. When a plaintiff or a defendant who has appeared re- When service sides out of the state, and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, shall be upon the attorney instead of the party, except of subpænas, of writs, and other process issued in the suit, and of papers to bring him into contempt.
Sec. 525. Successive actions may be maintained upon the same Successive contract or transaction, whenever, after the former action, a new contract. cause of action arises therefrom.
Sec. 526. Whenever two or more actions are pending at one time Consolidating between the same parties, and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated into one.
Sec. 527. An action may be brought by one person against ano- Actions to ther, for the purpose of determining an adverse claim which the lat- adverse claims. ter makes against the former, for money or property, upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as security.
Sec. 528. The clerk shall keep among the records of the court a Register of register of actions. He shall enter therein the title of the action, with brief notes under it, from time to time, of all papers filed and proceedings had therein.
Sec. 529. When there are three referees, or three arbitrators, all Referees and shall meet, but two of them may do any act which might be done by all.
Sec. 530. The time within which an act is to be done, as provided Computation in this act, shall be computed by excluding the first day, and including the last. If the last day be Sunday it shall be excluded.
Sec. 531. An affidavit, notice, or other paper, without the title of Affidavits. the action or proceeding in which it is made, or with a defective title,
Cause of action arising out of state.
shall be as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding.
Sec. 532. When a cause of action has arisen in another state, or in a foreign country, and by the laws thereof an action thereon can. not there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of a citizen thereof, who has held the cause of action from the time it accrued.
OF PROCEEDINGS IN CIVIL CASES IN JUSTICES' COURTS.
OF THE 'PARTIES AND THE TIME AND PLACE OF COMMENCING ACTIONS
IN JUSTICES' COURTS. Provisions SECTION 533. The provisions of Title I. of this act, as to parties to applied to justices' courts, actions, shall be applicable to actions of which a justice's court has
jurisdiction. How suits may be prosecuted
Sec. 534. Parties in justice's courts may prosecute or defend in person, or by attorney; and any person, on the request of a party, may act as his attorney, except that the constable by whom the summons or jury process was served, shall not appear or act on the trial
in behalf of either party. When defendant
Sec. 535. No may be held to
shall be held to answer to any summons is
person place of
sued against him from a justice's court, in civil action, in any township or city other than the one in which he shall reside, except in the cases following:
1st. When there shall be no justice's court for the township or city in which the defendant may reside, or no justice competent to act on
answer out of
the case :
2d. When two or more persons shall be jointly, or jointly and severally bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships or different cities of the same county, or in different counties, the plaintiff may prosecute his action in a justices' court of the township or city in which any of the debtors or other
4th. Where personal property unjustly taken or detained is claimed, or damages therefor are claimed, the plaintiff may bring his ac
justices' courts of
tion in any township or city in which the property may be found, or in which the property was taken :
5th. When the defendant is a non-resident of the county, he may be sued in any township or city wherein he may be found :
6th. When a person has contracted to perform any obligation at a particular place, and resides in another township or city, he may be sued in the township or city in which such obligation is to be performed, or in which he resides :
7th. When the foreclosure of a mortgage or the enforcement of a lien upon personal property is sought by the action, the plaintiff may sue in the township or city where the property is situated.
8th. Any person or persons residing in the city of San Francisco Jurisdiction of may be held to answer to any summons issued against him or them San Francisco. from the court of a justice, for any township within the corporate limits of the city of San Francisco, in any action or proceeding whereof justices of the peace of the city or county of San Francisco have or may have jurisdiction by law : Provided, nothing herein contained shall be construed to allow any justice of said city or county to hold a court in any other township than the one for which he shall have been elected. (1)
Sec. 536. Judgment upon confession may be entered up in any Judgment by justices' court in the state specified in the confession.
Sec. 537. Justices' courts shall have jurisdiction of an action upon Voluntary the voluntary appearance of the parties without summons, without re- give jurisdiction gard to their residences, or the place where the cause of action arose, or the subject matter of the action may exist.
SUMMONS, ARREST, ATTACHMENT, AND CLAIM OF PERSONAL PROPERTY.
commenced filing a copy of the account, note, bill, bond, or instrument upon which the action is brought, or a concise statment in writing of the cause of action, and the issuance of a summons thereon, or by the vol. untary appearance and pleadings of the parties without summons. In the latter case the action shall be deemed commenced at the time of appearance.
Sec. 539. When a guardian is necessary, he shall be appointed by Guardian, bow the justice as follows:
appointed, 1st. If the infant be plaintiff, the appointment shall be made be
(1) Amendment inserted from Stat. 1853, page 279.
fore the summons is issued, upon the application of the infant, if he be of the age of fourteen years or upwards; if under that age, upon the application of some relative or friend. The consent in writing of the guardian to be appointed, and to be responsible for costs, if he fail in the action, shall be first filed with the justice.
2d. If the infant be defendant, the guardian shall be appointed at the time the summons is returned, or before the pleadings. It shall be the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent in writing to be appointed. Otherwise, the justice may appoint any suitable person who gives such consent.
Sec. 540. The summons shall be addressed to the defendant by name, or if his name be unknown, by a fictitious name; and shall summon him to appear before the justice at his office, naming its township or city, and at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described in general terms, sufficient to apprise the defendant of the nature of the claim against him; and in action for money or damages, shall state the amount for which the plaintiff will take judgment, if the defendant fail to
It shall be subscribed by the justice before whom it is returnable.
Sec. 541. The time mentioned in the summons for the appearance of the defendant, and the time of service, shall be as follows:
1st. Where the summons is accompanied by an order to arrest the defendant, it shall be returnable immediately :
2d. When the defendant is not a resident of the township or city, or where the plaintiff is not a resident, and gives the security required by this act, it shall be returnable not more than two days from its date, and shall be served at least one day before the time for appearance :
3d. In all other cases it shall be returnable in not less than two nor more than ten days from its date, and shall be served at least two days before the time for appearance.
Sec. 542. The summons shall be served by the sheriff or a constable of the county as follows:
1st. If the action be against a corporation, by delivery of a copy to the president or other head of the corporation, or to the secretary, cashier, or managing agent thereof; or when no such officer resides in the county, to a director resident therein :
2d. If against a minor under the age of fourteen years, by delivery of a copy to such minor, and also to his father, mother, or guardian; or if there be none within the county, then to any person har.
Time for appearance for service of summons.
Summons, how served.