The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 3 Code of Civil Procedure) online

UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY




^^â– ^-^" - ^



THE

CODES OF CALIFORNIA



AS AMENDED AND IX FORCE AT THE CLOSE OF THE

THIRTY-EIGHTH SESSION OF THE LE(4ISLATT;RE,

1909



IN FOUR v()lump:s

F»OCKEX EDITION

ANNOTATED BY

JAMES M. KERR



VOLUME thrkp:

(ODE OF CIVIL PKOC EDIRE



SAN FKANCiSCU

BENDER- iMOSS COMPANY

LAW Pl'HLISIIKKS AND ]5()()K.SKLLKKS
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Copyright, 1909
By Bender-Moss Company



FOREWORD.

Pocket Edition. — We have thought it good, in response to
numerous requests so to do. to publish an edition of the Codes
and General Laws of California in small volumes which may be
convenient for the desk, the pocket, or the grip. This edition
is thoroughly annotated on new lines, giving the bench and bar
ready and specific reference to Kerr's Cyclopedic Codes, and
to the monographic and other notes in all the various series of
selected and annotated cases, as well as to other sources of
assistful information.

No apologies to offer, and none are required, for the appear-
ance of the Pocket Edition of the Codes and Statutes, because
such an edition has, for many years, been needed by the bench
and bar of this and other states. The annotations will be
found to be quite thorough references to sources where will
be found collected a large number of leading cases, if not all
the authorities, on the various points involved — except in the
department of probate law, in which department the work
has been done so thoroughly and admirably by Mr. W. S.
Church, that specific references to Church's New Probate
Law and Practice is all that is required for thorough annota-
tion. This work of annotation is a distinctive feature of this
edition of the Codes — the widely-heralded asseverations (which
were disingenuous because in possession of the real facts in
the case) by the publisher of a competing edition of the Codes
to the contrary notwithstanding. ' *

Kerr's Cyclopedic Codes are specifically cross-referred to
whenever there will be found in those Codes valuable annota-
tions on the specific point; in all other cases the cross-refer-
ences are to the Pocket Codes. These cross-references are
equally applicable to the Pocket Codes — less the exhaustive
collection of authorities. Any user who does not wish to avail
himself of these cross-references to the Cyc. Codes can skip
them, and still have left thousands of pertinent annotations,

lii



FOREWORD.

many of wliich, like the note appended to § 1823, are ex-
haustive monographs — on new lines of annotation.

To have omitted all reference to the annotations found in
the Cyclopedic Codes would have been to omit reference to
the largest and most exhaustive body of systematic pertinent
annotations accessible to the bench and bar of this or any
other state. Another such work as that one will not be seen
in this state in many years to come.

Method of preparation of the notes in this edition is the
Cyclopedic or alphabetic style, which enables the searcher,
with the least possible exertion, to find the exact point
wanted.

This edition is original. — According to the editor's concep-
tion of his duties to the profession in editing such a work, it
is incumbent on him to do more than simply repeat, parrot-
like, what he may find in the reports. He has sought to do the
work, once for all, for the entire profession, of correcting the
numerous and needless errors, typographical and otherwise, in
the reported cases. Among other things the editor has sought
to correct, both in the paragraphs giving citation of code
.sections, and also in the Table of Erroneous Citation of Sec-
tions, prefixed to each volume of this edition, the various
errors and misreferences in the citation of code sections in the
official volumes of published opinions. In not a few instances
the official opinion as filed has been emasculated in the
process of printing, thereby omitting all reference to sections
of the code which are contained in the opinion as filed, and as
published in the Pacific Reporter. All these instances are
pointed out. Other instances of emasculation, — such as elim-
inating argument, (Jutting out cases and sections of the codes
cited and substituting other authorities,- — do not fall within the
scope of this work.

The opinion as filed is the law in the case, and not as it is
changed during its course through the press into the bound
volume of the "law reports." The law requires the justices
of the supreme court to read proof and make corrections, etc.
(Pol. C. §§ 774. 775), but confers upon no one authority to
change the opinion filed.

iv



FOREWORD.

A monument of inefficiency in reporting the decisions of our
courts is found in the Table of Erroneous Citations of Code
Sections prefixed to this volume, and affecting citations to the
Code of Civil Pi'ocedure alone, to say nothing of the like
Tables prefixed to the other volumes of this set, and affecting
the respective codes. These tables show, beyond peradven-
ture, the wisdom of the act of the last legislature (amend-
ment to Pol. C. §§774, 775), which requires the Reporter,
among other things, to verify all citations to code sections,
and to correct any and all errors found. This is work done
in all other states by the Reporter without a compelling
statute.

It is to be noted that the errors pointed out in oui' Tables
ai'e corrected in the Pacific Reporter and the Lawyers Re-
ports Annotated.

This edition contains all that any other diminutive edition of
the California Codes ever contained — and a great deal more.
Every citation of every section of the various codes that has
ever been made by the California courts, by the Supreme
Court of the United States, and by the Federal circuit and
district courts, is given, together with a notation as to what
disposition was made of the particular section. References to
sections of our codes by the courts of other states are also
included, where found; but a thorough and exhaustive search
for such citations has not been made. References are also
included to all pertinent annotations and monographic notes
to be found in the American and English Annotated Cases,
American Decisions, American Reports, American State Re-
ports, Lawyers' Reports Annotated, etc.

The statutes embraced include every original section,
amended section, and new section added, enacted and in force
at the close of the Thirty-eighth Session of the Legislature,
together with a complete history of each section.

The index is prepared on modern lines in index-making, and,
while much of the detail of the work had to be left to others,
is thought will be found full and satisfactory. The method
of preparation is simple. The indentations indicate the con-
nection and subordination, each indentation-line referring

V



FOREWORD.

back to the general head above which projects one quad
farther to the left; the last-mentioned line refers back to the
line projecting still farther to the left one quad, and so on
back to the title. In this manner the repetition of the same
words or phrases several times is avoided. Everything, and
all the subdivisions, are alphabetized. The lines in black-
faced type do not indicate divisions or heads of the subject,
but simply lines which are not followed by a page number,
and which have two or more insets, or lines inset, under
them.

An effort has been made to retain all the general divisions
or heads found in the code itself. The points are indexed, or
cross-references made, in various places, where different
searchers are likely to look in different places, that is under
different heads, for the point wanted. In other words, no
paius have been spared to so construct the index that the
point will be readily found, no matter where the searcher
may first look.

The editor has had the valuable assistance of W. S. Church
and John G. Jury, of the San Francisco Bar, in the preparation
of this edition of the Codes.

JAMES M. KERR.

San Francisco, June 30, 1909.



CONTENTS.

Page.
ERRORS IN CALIFORNIA REPORTS IN CITATION xix-xxxiv

ABBREVIATIONS IN POCKET CODE xxxvi

Sections.

TITLE OF ACT 1

PRELIMINARY PROVISIONS 2-32

PART I. OF COURTS OF JUSTICE 33-304

Title I. Of their Organization, Jurisdiction, and

Terms 33-153

Chapter.

I. Courts of Justice in General 33, 34

II. Court of Impeachment 36-39

III. Supreme court 40-57

IV. Superior courts 65-79

V. Justices' courts 85-115

Article.

I. Justices' courts in cities and counties... 85-98

IT. Justices' courts in townships 103-107

III. Justices of the peace and justices' courts,

in general 110-115

(Chapter.

VI. Police courts 121

VII. General provisions respecting courts of

.iustice 124-153

Article.

T. I'ublicity of proceedings 124, 125

II. Incidental powers and duties of courts.. 128-131

III. Judicial days 133-135

IV. Proceedings in case of absence of judge.. 139,140
V. Provisions respecting places of holding

courts 142-144

VI. Seals of courts 147-153

vii



CONTENTS.

Sections.

Title II. Judicial Officers 156-187

Chapter.

I. Judicial officers in general 156-162

II. Powers of judges at chambers 165, 166

III. Disqualification of judges 170-172

IV. Incidental powers and duties of judicial

officers 176-179

V. Miscellaneous provisions respecting courts

and judicial officers 182-188

Title III. Persons Specially Invested with Powers of

a Judicial Nature 190-259

Chapter.

I. Jurors 190-254

Article.

I. Jurors in general 190-195

II. Qualifications and exemptions of jurors. 198-202
III. Of selecting and returning jurors for

courts of record 204-211

IV. Of drawing jurors for courts of record. . 214-221
V. Of summoning jurors for courts of record 225-228
VI. Of summoning jurors for courts not of

record 230-232

VII. Of summoning juries of inquest 235

VIII. Obedience to summons, how enforced . . . 238

IX. Of impaneling grand juries 241-243

X. Of impaneling trial juries in courts of

record 246-248

XI. Of impaneling trial juries in courts not

of record 250, 251

XII. Of impaneling juries of inquest 254

Chapter.

II. Court commissioners 258, 259

Title IV. Ministerial Officers of Courts of Justice . . . 262-274a
Chapter.

I. Of ministerial officers generally 262

II. Secretaries and bailiffs of the supreme

court 265, 266

III. Phonographic reporters 268-274b

viii



//f*



CONTENTS.

Sections.
Title V. Persons Specially Invested with Ministerial

Powers Relating to Courts of Justice . . 275-304
Chapter.

I. Attorneys and counselors at law 275-299

II. Other persons invested with such powers. . . . 304

PART II. OF ClVIIi ACTIONS 307-1059

Title I. Of the Form of Civil Actions 307-309

II. Of the Time of Commencing Civil Actions 312-363
Chapter.

I. The time of commencing actions in general 312
IT. The time of commencing actions for the

recovery of real property. 315-328

III. The time of commencing actions other than

for the recovery of real property 335-349

IV. General provisions as to the time of com-
mencing actions 350-363

Title III. Of the Parties to Civil Actions 367-390

IV. Of the Place of Trial of Civil Actions. . . 392-400
V. Of the Manner of Commencing Civil

Actions 405-416

VI. Of the Pleadings in Civil Actions 420-476

Chapter.

I. The pleadings in general 420-422

IT. The complaint 425-427

III. Demurrer to the complaint 430-434

IV. The answer 437-442

V. Demurrer to answer 443, 444

VI. Verification of pleadings 446-449

Vll. General rules of pleading 452-465

VIII. Variance — Mistakes in pleadings and

aniendnicnts 469-476

Title VII. Of the Provisional Remedies in Civil

Actions 478-574

(Chapter.

I. Arrest and Bail 478-504

II. Claim and Delivery of Personal Property. 509-521
ix



CONTENTS.
Chapter. Sections.

III. Injunction 525-533

IV. Attachment 537-560

V. Eeceivers 564-569

VI. Deposit in court 572-574

Title VIII. Of the Trial and Judgment in Civil

Actions 577-6801/^

Chapter.

I. Judgment in general 577-583

II. Judgment upon failure to answer 585

III. Issues — The mode of trial and postpone-

ments 588-596

IV. Trial by jury 600-628

Article.

I. Formation of the jury 600-604

11. Conduct of the trial 607-619

III. The verdict 624-628

Chapter.

V. Trial by the court 631-636

VI. Of references and trials by referees 638-645

VII. Provisions relating to trials in general. . .646-663%
Article.

I. Exceptions 646-653

11. New trials 656-663y2

Chapter.

VIII. The manner of giving and entering judg-
ment 664-680%

Title IX. Of the Execution of the Judgment in Civil

Actions 681-721

Chapter.

I. The execution 681-713y2

II. Proceedings supplementary to the execu-
tion 714-721

Title X. Actions in Particular Cases 726-827

Chapter.

I. Actions for the foreclosure of mortgages. 726-729

X



CONTENTS.
Chapter. Sections.

II. Actions for nuisance, waste, and wilful
trespass in certain cases, on real prop-
erty 731-735

III. Actions to determine conflicting claims to
real property, and other provisions re-
lating to actions concerning real estate 738-751

IV. Actions for the partition of real property 752-801
V. Actions for the usurpation of an office or

franchise 802-810

VI. Of actions against steamers, vessels, and

boats 813-827

Title XI. Of Proceedings in Justices' Courts 832-926

Chapter.

I. Place of trial of actions in justices' courts 832-838
II. Manner of commencing actions in justices'

courts 839-850

III. Pleadings in justices' courts 851-860

IV. Provisional remedies in justices' courts. . . 861-870
Article.

T. Arrest and bail 861-865

11. Attachment 866-869

m. Claim and delivery of personal property 870
Chapter.

V. Judgment by default in justices' courts.. 871,872
VI. Time of trial and postponements in

justices' courts 873-877

VII. Trials in justices' courts 878-887

VTII. .ludgments (other than by default) in

justices' courts 889-900

IX. Executions from justices' courts 901-905

X. Contempts in justices' courts 906-910

XI. Dockets of justices 911-918

XII. General provisions relating to justices'

courts 919-926

xl



CONTENTS.

Sections.
Title XII. Proceedings in Civil Actions in Police

Courts 929-933

XIII. Of Appeals in Civil Actions 936-980

Chapter.

L Appeals in general 936-959

II. Appeals to supreme court 963-971

III. Appeals to superior courts 974-980

Title XIV. Of Miscellaneous Provisions 989-1059

I. Proceedings against joint debtors 989-994

II. Offer of the defendant to compromise 997

III. Inspection of writings 1000

IV. Motions and orders 1003-1007

V. Notices, and filing and service of papers. .1010-1019

VI. Of costs 1021-1039

VII. General provisions 1045-1059

PART III. OF SPECIAL PROCEEDINGS OF A

CIVIL NATURE 1063-1822f

Preliminary Provisions 1063, 1064

Title I. Of Writs of Review, Mandate, and Prohi-
bition 1067-1110

Chapter.

I. Writ of review 1067-1077

II. Writ of mandate 1084-1097

III. Writ of prohibition 1102-1105

IV. Writs of review, mandate, and prohibition

may issue and be heard at chambers. . . 1108

V. Eules of practice and appeals 1109, 1110

Title II. Of Contesting Certain Elections 1111-1127

III. Of Summary Proceedings 1132-1179

Chapter.

I. Confession of judgment without action. . .1132-1135
II. Submitting a controversy without action. .1138-1140
xii



CONTENTS.
Chapter. Sections.

III. Discharge of jjersons impiisoued ou civil

process 1143-1154

IV. Summary proceedings for obtaining posses-
sion of real property in certain cases. .11.59-1379

Title IV. Of the Enforcement of Liens 1180-1208

Chapter.

I. Liens in general 1180

II. Liens of mechanics and others upon real

property 118,3-1203a

III. Certain liens for salaries and wages. .1204-1208 [a]

IV. Certain liens upon animals 1208

Title V. Of Contempts 1209-1222

VI. Of the Voluntary Dissolution of Corpora-
tions 1227-1234

VII. Of Eminent Domain 1237-1264

VIII. Of Escheated Estates 1269-1272

IX. Of Change of Names 1275-1279

X. Of Arbitrations 1281-1290

XI. Of Proceedings in Probate Courts 1294-1810

chapter.

I. Of jurisdiction 1294, 1295

II. Of the probate of wills 1298-134G

Article.

T. Petition, notice, and proof 1298-1309

II. Contesting probate of wills 1312-1318

IIL Probate of foreign wills 1322-1324

IV. Contesting will after probate 1327-1333

V. Probate of lost or destroyed will 1338-1341

VI. Probate of nuncupative wills ;.. 1344-1346

Chapter.

III. Of executors and administrators, their let-
ters, bonds, removals and suspensions. .1348-1440
Article.

I. Letters testamentary and of administra-
tion, with the will annexed, how and

to whom issued 1348-1356

xiii



CONTENTS.
Article. Sections.

II. Form of letters 1360-1362

III. Letters of administration, to whom, and

the order in which they are granted.. 1365-1370
IV. Petition and contest for letters, and ac-
tion thereon 1371-1380

V. Eevocation of letters and proceedings

therefor 1383-1386

VI. Oaths and bonds of executors and ad-
ministrators 1387-1407

VIT. Special administrators and their powers

and duties 1411-1417

VIII. Wills found after letters of administra-
tion granted, and miscellaneous pro-
visions 1423-1429

IX. Disqualification of judges and transfers

of administrations 1430-1433

X. Eemovals and suspensions in certain

cases 1436-1440

Chapter.

IV. Of the inventory and collection of the ef-
fects of decedents 1443-1461

Article.

I. Inventory, appraisement, and possession

of estate 1443-1454

II. Embezzlement and surrender of property

of the estate 1458-1461

Chapter.

V. Of the provisions for the support of the

family, and of the homestead 1464-1486

Article.

I. Of the provisions for the support of the

family 1464-1470

II. Of the homestead 1474-1486

Chapter.

VI. Of claims against the estate 1490-1514

VII. Of sales and conveyance of property of

decedents 1516-1579

xiv



CONTENTS.
Article. Sections.

I. Sales in general 1516-1519

II. Sales of personal property 1522-1527

III. Summary sales of mines and mining in-
terests 1529-1533

IV. The sale of real estate, interests therein,

and confirmation thereof 1536-1576

V. Mortgages and leases of real estate. .. .1577-1579
Chapter.
VIII. Of the powers and duties of executors and
administrators, and of the management

of estates 1580-1592

IX. Of the conveyance of real estate and trans-
fer of personal property by executors
and administrators in certain cases. .. .1597-1607
X. Of accounts rendered by executors and ad-
ministrators, and of the payment of

debts 1612-1653

Article.

I. Liabilities and compensation of execu-
tors and administrators 1612-1619

II. Accounting and settlements by executors

and administrators 1622-1640

III. The payment of debts of the estate 1643-1653

Chapter.

XT. Of the partition, distribution, and final

settlement of estates 1658-17031^

Article.

I. Partial distribution prior to final settle-
ment 1658-1663

11. Distribution on final settlement 1664-1670

III. Distribution and partition 1675-1686

IV. Agints for absent interested parties, dis-

charge of executor or administrator. .1691-1698
V. Accounts of trustees — Distribution. .. 1699-1703^^
Chapter.
XII. Of orders, decrees, process, minutes, rec-
ords, trials, and appeals 1704-1723

XIII. Of public administrator 1726-1744

XIV. Of guardian and ward 1747-1810



Article
I.
II.

III.
IV.

V.
VI.

Title XII.
XIII.
XIV.



CONTENTS.

Sections.

Guardians of minors 1747-1761

Guardians of insane and incompetent per-
sons 1763-1767

The powers and duties of guardians 1768-1776

The sale of property and disposition of

the proceeds 1777-1792

Non-resident guardians and wards 1793-1799

General and miscellaneous provisions. . .1800-1810

Of Sole Traders 1811-1821

Estates of Missing Persons 1822, 1822b

Proceedings for the Adjustment, Settle-
ment, and Payment of Any Indebted-
ness Existing Against Any City or Mu-
nicipal Corporation at the Time of Ex-
clusion of Territory Therefrom, and the
Division of the Property Thereof 1822c-1822f



PART IV. OF EVIDENCE 1823-2104

General Definitions and Divisions 1823-1839



Title I. Of the General Principles of Evidence. . . .1844-

II. Of the Kind and Degrees of Evidence 1875-

Chapter.

I. Knowledge of the court

ll. Witnesses 1878-

III. Writings 1887-

Article.

I. Writings, in general 1887-

II. Public writings 1892-

III. Private writings 1929-

Chapter.

IV. Material objects presented to the senses,

other than writings

V. Indirect evidence, inferences, and pre-
sumptions 1957

VI. Indispensable evidence 1967-

VII. Conclusive or unanswerable evidence

xvi



1870
1978

1875
1884
1951

1889
1927
1951



1954

1963
1974
1978



CONTENTS.

.Sections.

Title III. Of the Production of Evidence 1981-2054

Chapter.

T. By whom to be produced 1981, 1982

II. Means of production 1985-1997

III. Manner of production 2002-2054

Article.

I. Mode of taking the testimony of

witnesses 2002-2006

II. Affidavits 2009-2015

III. Depositions 2019-2023

IV. Manner of taking depositions out of the

state 2024-2029

V. Manner of taking depositions in this

state 2031-2038

VI. General rules of examination 2042-2054

Title IV. Of the Effect of Evidence 2061

V. Of the Rights and Duties of Witnesses 2064-2070

VI. Of Evidence in Particular Cases, and Mis-
cellaneous and General Provisions 2074-2104

Chapter.

I. Evidence in particular cases 2074-2079

II. Proceedings to perpetuate testimony 2083-2089

m. Administration of oaths and affirmations. .2093-2097
IV. General provisions 2101-2104



TABLE OF ERRORS

IN CAIJFORNIA REPORTS IN CITATION

OF CODE SECTIONS.



PRACTICE ACT.
§ 66 Practice Act (§ 463 C. C. P.), erroneously stated in 122 C.

162, 164, to be a reenactment of 8 1379 C. C. P., same

error, 54 P. 736, 737.
S 90 Practice Act erroneously cited for § 1573 C. C. P., 97 C.

568, 570, correct citation, 32 P. 597, 598.
§ 147 Practice Act (§ 580 C. C. P.), erroneously cited as § 157,

50 C. 549, 552.
§157 Practice Act (§594 C. C. P.), erroneously cited for § 147,

50 G. 549, 552.
§ 182 Practice Act (§ 638 C. C. P.), erroneously cited for § 182

Crim. Prac. Act, 46 C. 141, 146, 149, 150.
§187 Practice Act (§643 C. C. P.), erroneously cited, 34 C.

28, 35.
Practice Act (§645 C. C. P.), erroneously cited, 34 C.

28, 35.
§ 190 Practice Act erroneously cited as § 1413 C. C. P., 97 C.

568, 570, correct citation, 32 P. 597, 598.
§408 Practice Act (§2065 C. C. P.), erroneously cited, 3 C.

247, 249.
§ 442 Practice Act (§ 2088 C. C. P.), erroneously cited for § 443

Practice Act, 3 C. 122, 127.
§443 Practice Act (§2093 C. C. P.), erroneously cited as §442

Practice Act, 3 C. 122, 127.



CODE OF CIVIL PROCEDURE.
§ "20, 61" erroneously cited for § 2061, 71 C. 395, 397, correct

citation, 12 P. 272.
§ 36 erroneously cited for § 86, 107 C. 117, 118, correct citation,
40 P. 100.

xix



TABLE OF ERRORS.

§43 erroneously cited for §43 Insolvent Act 1880, 104 C. 133,

135.
§ 86 erroneously cited as § 36, 107 C. 117, 118, correct citation,

40 P. 100.
§ 128 erroneously cited as § 1128, 79 C. 600, 602, correct citation,

21 P. 954, 955.

erroneously cited as § 1286, 74 C. 106, 108, same error,

15 P. 448, 449.
§ 137 erroneously cited for § 137 C. C, 98 C. 320, 321, correct

citation, 33 P. 114, 115.
§ 170 subd. 1 erroneously cited as § 179 subd. 1, 64 C. 299, 300,

correct citation, 30 P. 848.
§ 179 subd. 1, erroneously cited for § 170 subd. 1, 64 C. 299, 300,

correct citation, 30 P. 848.
§ 203 erroneously cited for § 670, 123 C. 77, 80, correct citation,

55 P. 696.
§ 238 erroneously cited as § 238 Pen. C, 105 C. 504, 511, correct

citation, 39 P. 16, 18. (There is no § 238 Pen. C.)
§ 248 erroneously cited for § 348, 65 C. 71, 72, same error, 2 P.

887.
§ 257 erroneously cited for § 257 C. C, 121 C. 468, 475, correct

citation, 53 P. 936, 939.
§ 283 erroneously cited as § 383, 81 C. 652, 653, correct citation.

22 P. 974, 975.

§ 284 erroneously cited as § 285, 118 C. 589, 590, correct citation,
50 P. 670.

§ 285 erroneously cited for § 284. 118 C. 589, 590, correct cita-
tion, 50 P. 670.

§302 erroneously cited for S 602, 119 C. 620, 621, correct cita-
tion, 51 P. 957.

§ 305 erroneously cited for C. C. § 305, 127 C. 630, 637, correct
citation, 60 P. 424, 426. (There is no § 305 C. C. P.)

§ 307 erroneously cited for § 367, 106 C. 651, 657, correct cita-
tion, 40 P. 810.

§ 308 erroneously cited for § 308 C. C, 127 C. 630, 637, correct