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to change the place of trial: 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offense committed on a lake, river or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed. 2. Against a public officer or person especially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command, or in his aid, does anything touching the duties of such officer.
ART. 757, Sec. 20. In all other cases the action shall be tried in the county in which the parties, or some of them, reside at the commencement of the action; or, if none of the parties reside in the state, the same may be tried in any county which the plaintiff may designate in his complaint; subject, however, to the power of the court to change the place of trial, as provided in this act.
ART. 758, Sec. 21. The court may, on motion, change the place of trial in the following cases: 1. When the county designated in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change. 4. When, from any cause, the judge is disqualified from acting in the action. (1)
3. Manner of Commencing Action.
ART. 759, Sec. 22. Civil actions in the district court, superior court of the city of San Francisco, and the county courts, shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon; provided, that, after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer shall be deemed a waiver of summons.-[Am. May 7, 1855; R. S. St. 1851, 54; St. 1850, 430; C. L. 522.
ART. 760, Sec. 23. The clerk shall indorse on the complaint the day, month and year the same is filed; and, at any time after the filing, the plaintiff may have a summons issued. The summons shall be signed by the clerk, and directed to the defendant, and be issued under the seal of the court.
ART. 761, Sec. 24. The summons shall state the parties to the action, the court in which it is brought, the county in which the complaint is filed, and require the defendant to appear and answer the complaint, within the time mentioned in the next section, after the service of summons, exclusive of the day of service, or that judgment by default will be taken against him, according to the prayer of the complaint, briefly stating the sum or other relief demanded in the complaint. (2) -[Am. May 15, 1854; R. S. St. 1851, 54; St. 50, 430; C. L. 523.
ART. 762, Sec. 25. The time in which the summons shall require the defendant to answer the complaint shall be as follows: 1. If the defendant is served within the county in which the action is brought, ten days. 2. If the defendant is served out of the county, but in the district in which the action is brought, twenty days. 3. In all other cases, forty days. (3)
ART. 763, Sec. 26. There shall also be inserted in the summons a notice, in substance, as follows: 1. In an action arising on contract for the recovery only of money or damages, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint. 2. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court for the
relief demanded therein.
ART. 764, Sec. 27. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, may file with the (1) Sloan r. Smith, 3 Cal. 410; Tooms r. Randall, 3 Cal. 438; Reyes r. Sanford, 5 Cal. 117; People v. Fisher, April T. 1856. (3) Burt v. Scrantorn, 1 Cal. 416.
(2) State v. Woodlief, 2 Cal. 241.
recorder of the county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action and a description of the property in that county affected thereby. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.
ART. 765, Sec. 28. The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is brought, or by any white male citizen of the United States, over twenty-one years of age, who is competent to be a witness on the trial of the action, except as hereinafter provided; a copy of the complaint, certified by the clerk, shall be served with the summons. When the summons is served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer of its service and of the service of the copy of the complaint to the office of the clerk from which the summons issued. When the summons is served by any other person, as before provided, it shall be returned to the office of the clerk from which it issued, with the affidavit of such person of its service, and of the service of a copy of the complaint. If there be more than one defendant in the action, and such defendants reside within three miles of the clerk's office, a copy of the complaint need be served on only one of the defendants. (1)-[Am. April 28, 1855; R. S. St. 1854, 59; St. 1851, 55; St. 1850, 430; C. L. 523.
ART. 766, Sec. 29. The summons shall be served by delivering a copy thereof as follows: 1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier or managing agent thereof. 2. If against a minor, under the age of fourteen years, to such minor personally, and also to his father, mother or guardian; or, if there be none within the state, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed. 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian. 4. In all other cases, to the defendant personally.-[Am. May 15, 1854; R. S. St. 1851, 55; St. 50, 430; C. L. 523. ART. 767, Sec. 30. When the person on whom the service is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, and the fact shall appear, by affidavit, to the satisfaction of the court, or a judge thereof, or a county judge, and it shall, in like manner, appear that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may grant an order that the service be made by the publication of the summons.
ART. 768, Sec. 31. The order shall direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; provided, that publication against a defendant residing out of the state, or absent therefrom, shall not be less than three months. In case of publication where the residence of a non-resident or absent defendant is known, the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence. When. publication is ordered, personal service of a copy of the summons and complaint, out of the state, shall be equivalent to publication and deposit in the post-office. In either case, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication. In actions upon contracts for the direct payment of money, the court, in its discretion, may, instead of ordering publication, or may, after publication, appoint an attorney to appear for the non-resident, absent or concealed defendant, and conduct the proceedings on his part. (2)
(1) Crane v. Brannan, 3 Cal. 192.
(2) Grewell v. Henderson, 5 Cal. 465,
ART. 769, Sec. 32. Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: 1. If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant served; or, 2. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants.
ART. 770, Sec. 33. Proof of the service of the summons shall be as follows: 1. If served by the Sheriff or his deputy, the affidavit or certificate of such sheriff or deputy; or, 2. If by any other person, his affidavit thereof; or, 3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, if the same shall have been deposited; or, 4. The written admission of the defendant.
ART. 771, Sec. 34. In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of the service.
ART. 772, Sec. 35. From the time of the service of the summons and copy of complaint in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary ap pearance of a defendant shall be equivalent to personal service of the summons upon him.(1)
ART. 773, Sec. 36. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court.(2)
Sec. 37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act. Sec. 38. The only pleading on the part of the plaintiff shall be the complaint or demurrer to the defendant's answer, and the only pleading on the part of the defendant shall be the demurrer or the answer. The demurrer or answer of the defendant shall be filed with the clerk of the court, and a copy thereof served upon the plaintiff or his attorney; provided, the plaintiff or his attorney reside within the county where the action is pending.-[Am. May 7, 1855; R. S. St. 1851, 56; St. 1850, 432; C. L. 525.
ART. 774, Sec. 39. The complaint shall contain: 1. The title of the action, specifying the name of the court and the name of the county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. 2. A statement of the facts constituting the cause of action in ordinary and concise language. 3. A demand of the relief which the plaintiff claims. If the recovery of money, or damages be demanded, the amount thereof shall be stated.(3) ART. 775, Sec. 40. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4. That there is a defect of parties, plaintiff or defendant; or, 5. That several causes of action have been improperly united; or, 6. That the complaint does not state facts sufficient to constitute a cause of action.(4)
ART. 776, Sec. 41. The demurrer shall distinctly specify the grounds upon
(1) Suydam v. Pitcher, 4 Cal. 280.
(2) Chipman v. Emeric, 5 Cal. 239.
(3) Sterling v. Hanson, 1 Cal. 478; Russell v. Ford, 2 Cal. 86; Godwin v. Stebbins, id. 103; Truebody r. Ja cobson, id. 269; Buckley v. Carlisle, id. 420; Stone v. Fouse, 3 Cal. 292; Barnett v. Kilbourne, id. 327; 0 ̊Conner v. Corbitt, id. 370; Lewis v. Myers, id. 475; Lightstone v. Lawrence, 4 Cal. 277; Shafer v. Bear River Co. id. 294; Nugent v. Locke, id. 318; Castro v. Gill, 5 Cal. 40; Norris v. Lapsley, id. 47; Russell e. Alvarez, id. 48. (4) De Boom v. Priestly, 1 Cal. 206; Pierce v. Minturn, 1 Cal. 470; Brooks v. Minturn, 1 Cal. 481; Happe ®. Stout, 2 Cal. 460; Otero v. Bullard, 3 Cal. 188; Mayo v. Stansbury, 3 Cal. 465; Garcia v. Satrustegui, 4 Cal 244; Whiting v. Heslep, 4 Cal. 327; Powell v. Ross, 4 Cal. 197; Robinson v. Howard, 5 Cal. 428.
which any of the objections to the complaint are taken. Unless it do so, it may be disregarded.
ART. 777, Sec. 42. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue; or may demur and answer at the same time.
Sec. 43. If the complaint be amended, a copy of the amendments shall be filed, or the court may in its discretion require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendant to be affected thereby, or upon his attorney, if he has appeared by attorney; the defendant shall answer in such time as may be ordered by the court, and judgment by default may be entered upon failure to answer, as in other cases.-[Am. April 28, 1855; R. S. St. 1854, 60; St. 1851, 57; St. 1850, 432; C. L. 526,
ART. 778, Sec. 44. When any of the matters enumerated in section forty do not appear upon the face of the complaint, the objection may be taken by answer. ART. 779, Sec. 45. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.
ABT. 780, Sec. 46. The answer of the defendant shall contain: 1. If the complaint be verified, a specific denial to each allegation of the complaint controverted by the defendant or a denial thereof, according to his information and belief; if the complaint be not verified, then a general denial to each of such allegations, but a general denial shall only put in issue the material and express allegations of the complaint. 2. A statement of any new matter constituting a defense in ordinary and concise language.-[Am. May 15, 1854;. R. S. St. 1851, 57; St. 1850, 432; C. L. 526.(1)
ART. 781, Sec. 47. The counter claim mentioned in the last section [St. 1851, 57,] shall be one existing in favor of the defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action.(2)
ART. 782, Sec. 48. When cross demands have existed between persons, under such circumstances, that if one had brought an action against the other, a counter claim could have been set up, neither shall be deprived of the benefit thereof, by the assignment or death of the other; but the two demands shall be deemed compensated, so far as they equal each other.
ART. 783, Sec. 49. The defendant may set forth by answer as many defenses and counter claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.
ART. 784, Sec. 50. When the answer contains new matter, the plaintiff may demur to the same for insufficiency, stating in his demurrer the grounds thereof, and he may also demur to one or more of several defenses set up in the answer. Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court in its discretion may impose.-[Am. May 15, 1854; R. S. St. 1851, 58; St. 1850, 433; C. L. 527.
ART. 785, Sec. 51. Every pleading shall be subscribed by the party, or his attorney, and when the complaint is verified by affidavit, the answer shall be verified also, except as provided in the next section.
(1) Ladd v. Stevenson, 1 Cal. 18; Von Schmidt v. Huntington, 1 Cal, 55; Grogan v. Ruekle, id. 194; Lineker t. Ayeshford, id. 76; Kendall v. Vallejo, id. 371; Walter v. Minturn, íd. 362; Gavin v. Anna, 2 Cal. 494; McLarren. Spalding, id. 510; De Ro v. Cordes, 4 Cal. 117; Flint v. Lyon, id. 17; Taylor v. Randall, 5 Cal. 79. (2) Bernard v. Mullot, 1 Cal. 368; Case v. Maxcy, July T. 1856.
ART. 786, Sec. 52. The verification of the answer required in the last section be omitted when an admission of the truth of the complaint might subject the party to prosecution for felony.
ART. 787, Sec. 53. When action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same be verified. (1)
ART. 788, Sec. 54. When the defense to an action is founded upon written instrument, and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument will be deemed admitted, unless the plaintiff file with the clerk, five days previous to the commencement of the term at which the action is to be tried, an affidavit denying the same.
ART. 789, Sec. 55. In all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true. And where a pleading is verified, it shall be by the affidavit of the party, unless he be absent from the county where the attorney resides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney, or other person verifying the same. When the pleading is verified by the attorney, or any other person except the party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; or when the state, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts, except that in actions prosecuted by the attorney-general in behalf of the state the pleadings need not, in any case, be verified. (2)
ART. 790, Sec. 56. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but he shall deliver to the adverse party, within five days after a demand thereof, in writing, a copy of the account, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a further account, when the one delivered is too general, or is defective in any particular. (3)
ART. 791, Sec. 57. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court on motion of any person aggrieved thereby. ART. 792, Sec. 58. In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint.
ART. 793, Sec. 59. In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction.
ART. 794, Sec. 60. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall establish on the trial the facts showing such performance. (4)
ART. 795, Sec. 61. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.
ART. 796, Sec. 62. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the applica tion to the plaintiff of the defamatory matter out of which the cause of action
(1) Grogan v. Ruckle, 1 Cal. 158; Youngs v. Bell, 4 Cal. 201. (2) Greenfield v. Steamer Grunnell, Jan. T. 1856.
(3) Dennison v. Smith, 1 Cal. 437.