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1129. Husband and wife cannot be witness against 1159. In foreign country.
1130. Attorney cannot disclose communications of client.
1131. Clergyman cannot disclose confession.
1132. Physician not to disclose information acquired from patient.
1160. How certified when taken out of the state.
Deposition taken in this state
1161. Deposition, in what cases may be taken.
1163. Manner of examination; manner of transmis-
1133. Public officer cannot disclose confidential com- 1164. May be used by either party.
1134. Judge or juror may be witness.
1135. Interpreter of foreign language.
Attendance of witness
1136. Subpena duces tecum ; witness cannot be re
quired to attend out of county of residence.
1137. Subpena, how issued.
1138. How served.
1140. Person present need not be subpenaed. 1141. Duty of witness.
1142. What questions witness must answer. 1143. Penalty for disobedience to subpena. 1144. Same.
1145. Witness failing to attend may be arrested.
1146. Witness confined in jail, testimony, how taken. 1147. Same.
1149. Witness exonerated from arrest.
1150. Liability of officer making the arrest. Examination of party
1151. Discovery under oath, how had.
Deposition taken out of this state
1165. When testimony may be taken out of the state. 1166. How taken.
1167. Settling interrogatories.
1168. Commission, what to contain.
1169. Postponement of trial for non-return of.
Perpetuation of testimony
1170. Testimony, how perpetuated.
1171. Manner of proceeding.
1172. Same; examination and deposition.
1174. Deposition, when to be used as evidence.
1175. Who authorized to administer oaths.
1177. Affirmation, form of.
Inspection of documents, etc.
1178. Court may order party to allow inspection, etc.
1179. Evidence of the contents of a writing.
1152. Party may be examined at instance of adverse 1182. Same. party.
1183. Judicial record of foreign country, how proved.
1153. Examination may be rebutted; party refusing to 1184. Copy of, when admissible.
testify, judgment to go against him.
1154. Examination of party, on own behalf.
1185. Printed volumes of statutes, to be admitted as evidence.
1155. Examination of party for whose benefit suit is 1186. Seal of court, etc. how impressed. prosecuted.
1156. Party may testify on his own behalf in certain
1187. Copy of document, etc. when certified by custodian of same, evidence.
12. Certiorari and Mandamus.
1189. Application for, how made.
1188. Denomination of writ; by what courts granted; 1190. To whom to be directed.
in what cases granted.
1191. Writ, what to contain.
1200. Writ either alternative or peremptory; alterna- 1210. Penalty for disobeying peremptory mandamus.
tive, defined; peremptory, defined.
1201. When alternative and when peremptory, to be issued; notice of application; not to issue by default.
1212. Contempt, what deemed.
1213. When punishable summarily.
1211. Writs of certiorari and mandamus issuable in vacation.
13. Contempts and their Punishments.
1219. Return of warrant; trial.
1214. Attachment for, when issuable; commitment 1221. Penalty, when contempt consists in omission of for, when issuable.
1216. Duty of sheriff.
1217. Discharge from arrest.
1218. How effected.
an act in the power of defendant to perform. 1222. Indictment.
1223. Proceeding when defendant does not appear. 1224. Duty of officer having defendant in custody. 1225. Judgment to be final, etc; punishment. 14. Costs.
1226. Compensation of attorneys, etc; prevailing party 1235. In action where administrator, executor, etc. is
1227. Costs, when allowed of course, to plaintiff. 1228. When several actions on one cause of action. 1229. When allowed of course, to defendant.
1230. When may be allowed or not; when not allowed. 1231. When plaintiff fails to recover against all defend
1232. Of appeal.
1233. Fees of referees; costs where trial is postponed. 1234. When defendant has tendered amount due.
1236. On review.
1237. Tax-fee on action, etc; how applied; settlement
1238. Memorandum of costs to be delivered to clerk.
1243. Costs where state is party.
15. Motions, Orders, Notices, Service of Papers and Miscellaneous Provisions.
1258. Paper without the title of the action, when valid.
fendant resides out of the state; what papers 1259. Limitation of action arising out of the state. to be served on the attorney.
16. Proceedings in Justice's Court. Parties, time and place of commencing action
1290. When property is concealed in a building, etc. 1326. How execution may issue to sheriffs on judgment
how officer must proceed.
1291. Disposition of property by officer.
of justice; process on judgment, how issued; lien of judgment.
1292. Proceeding in case property is claimed by third 1327. Execution.
1334. To be deposited with successor; during vacancy
to be deposited with county clerk.
1299. Oral, to be entered on docket; written, to be 1335. Any justice may issue executions on; in case of
filed; no particular form of.
1300. Complaint, what to state.
1301. Answer, what to contain.
1302. Certain statement in, equivalent to denial.
1303. When cause of action arises upon an instrument
for payment of money only.
creation of new county or change of bounda
ries, who considered successor.
1336. Who deemed successor.
1338. Papers, how to be filled up.
1339. In case of sickness of justice.
1304. Instrument, the ground of action admitted to be 1340. Special deputation to serve papers.
genuine, unless denied under oath.
1305. Objection to pleading.
1306. Variance between proof and allegation, when
1307. Amendment of pleadings.
1308. Title to real property not to be raised; proceedings when title to real property comes in question.
1341. Authority of such deputation.
1342. Constable after expiration of term, to complete the execution of process already begun. 1343. Contempt, what acts constitute.
1344. When and how punished summarily; not in view of court, proceedings; punishment of.
1345. Conviction for, how entered. 1346. Subpenas.
1309. When action to be transferred; how transferred; 1347. Commissioners to take depositions.
1318. Judgment of dismissal without prejudice, in what 1358. Duty of justice in paying over money, etc; pen
Act of April 13, 1850, adopting the Common Law.
ARTICLE 735. The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution of the United States, or the constitution or laws of the state of California, shall be the rule of decision in all the courts of this state.
II. FORM OF ACTION, PARTIES, PLEADINGS, EVIDENCE, TRIAL, JUDGMENT, EXECUTION, ETC.
Act of April 29, 1851, to regulate Proceedings in Civil Cases.-[Took effect July 1, 1851. R. A. St. 1850, 428, 412, 189, 179, 203, 423.
1. Form of Action and Parties.
ART. 736, Sec. 1. There shall be in this state but one form of civil action, for the enforcement or protection of private rights, and the redress or prevention of private wrongs. (1)
ART. 737, Sec. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.
ART. 738, Sec. 3. When a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.
ART. 739, Sec. 4. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act; but in suits brought by the assignee of an account, unliquidated demand, or thing in action not arising out of contract, assigned subsequently to the first day of July, one thousand eight hundred and fifty-four, the assignor shall not be a witness on behalf of the plaintiff.(2)-[Am. May 7, 1855; R. S. St. 1854, 59; St. 1851, 51; St. 1850, 428; C. L. 520.
ART. 740, Sec. 5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense, existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration before due. (3)
ART. 741, Sec. 6. An executor or administrator, trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section, shall be construed to include a person, with whom, or in whose name, a contract is made for the benefit of another. [Am. May 15, 1854; R. S. St. 1851, 52; St. 1850, 428; C. L. 520. ART. 742, Sec. 7. When a married woman is a party, her husband shall be joined with her; except that:
ART. 743. 1. When the action concerns her separate property, she ART. 744. 2. When the action is between herself and her husband, she may sue or be sued alone. (4)
ART. 745, Sec. 8. If a husband and wife is sued together, the wife may defend
for her own right. (5)
(1) Dewitt v. Hays, 2 Cal. 463.
(2) Griffin v. Alsop, 4 Cal. 406; Ryan v. Maddux, July T. 1856; Allen v. S. N. Co. Oct. T. 1856; Oliver v. Walsh, id.
(3) Morgan v. Lowe, 5 Cal. 325; Rhodes v. Hinckley, July T. 1856.
(4) Snyder v. Webb, 3 Cal. 83; Kashaw v. Kashaw, 3 Cal. 312.
(5) Deuprez v. Deuprez, 5 Cal. 387.
ART. 746, Sec. 9. When an infant is a party he shall appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.
ART. 747, Sec. 10. The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of a relative or friend of the infant. 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant.
ART. 748, Sec. 11. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward.
ART. 749, Sec. 12. All persons having an interest in the subject of the action, and obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act.
ART. 750, Sec. 13. Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. (1)
ART. 751, Sec. 14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs, or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.
ART. 752, Sec. 15. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff.
ART. 753, Sec. 16. An action shall not abate by the death, or other disability of a party; or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, or other disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action.
ART. 754, Sec. 17. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights: but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. (2)
2. Place of Trial of Civil Actions.
ART. 755, Sec. 18. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this act: 1. For the recovery of real property, or of an estate, or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property. 2. For the partition of real property. 3. For the foreclosure of a mortgage of real property. (3)
ART. 756, Sec. 19. Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court
(1) Winans v. Christy, 4 Cal. 70; Beck v. San Francisco, id. 375. (2) Wilson v. Lossen, 5 Cal. 114.
(3) Vallejo v. Randall, 5 Cal. 461.