UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
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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
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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