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

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dismissal at instance of court. See tit. Dismissal.

generally, 581.

granted, when, 581.

grounds for, 581.

intervention, effect on, 581.

judgnient on, not on merits, 581.

merits, in what cases judgments to be on, 582.

on failure

of party to appear, 581.

to prove case for jury, 581.
on plaintiff abandoning action, 581.
provisional remedy, effect on, 581.

specify grounds of motion for, defendant must, 581.
terms, offering, 581.
when may be entered, 581.

in another state, may take, 2013.

may take, 2012.
deposition, may take, 2031.
oaths, etc., may administer, 2093.
seals, records, and furniture exempt, 690.
NOTE, See tits. Bills and Notess Proniis.sor5- Notes.

adverse party, to, to produce writing. See tit. Notice to Pro-


[References are to sections.]

NOTICE (continued).

appeal, of. See tit. A|ii>eal.<« in Civil Aftioii.«i.

as to, 940.

to superior court, 974.
appearance dispenses with proof of, 1306.

property, of sale of, 548, 550.

vessel, of sale of, 824.

of change of, 285.

of death or removal of, 286.

of substitution of, 285.
bill of exceptions. See tit. Bill of Except iona.

in settling, 650.
by administrator of final settlement, 1634.
calendar, on restoring case to, 593.
constructive, lis pendens is, 409.
construed how, 1864.

contempt proceedings, to show cause in, 1212.
contribution, of claim for, 709.
corporation. See tit. Corporation.

dissolution of, notice of, hearing on, 1233.

given of to public administrator, 1728.

or removal of attorney, 286.

creditors, to. See tit. Claims against Estate.
as to, 1490.

estate, of postponement of sale of, 1558.

real property, of sale of, 1547, 1549.
defective title, papers in case with, valid, when, 1046.
distribution, of proceedings on, 1664.
execution sale, of

as to, 692.

liability for defacing or taking down, 693.

selling without, 693.
form of, 1010.

heading to paper, defective. 1046.
hearing, of, 594.

in justice court, 850.
imprisonment, on application for discharge from, 1144.
in claim and delivery, when and where to be filed, 520.
in mechanics' lien. See tit. Meclianlcs' Lien.
injunction, of motion to dissolve, 532.
judicial. See tit. JndicinI Notice-
taken of what facts, 1875.
letters of administration, of application for, 1373.


[References are to sections.]

NOTICE (continued).

lieniiolders, to in partition to ni)]i<'ar before referee, 762.
lis pendens. See tit. Liis I'einlens.
mail, service by, time for, 1005.
mandamus, of application for, 1088.
mechanics' lien. See tit. Mechsinu'.s' Lieu.

to owner of work done, 1184.
m.otions and orders, of, 1003-1007.

must be given to defendant, after appearance, of all pro-
ceedings, 1014.
need not be given to defendant, where he fails to appear, of

proceedings, 1014.
negotiable instruinent. See tits. Dills and Notes; Negotiable
lustriiuieiits; Promissory Notes.

of dishonor of, construction of, 1865.
new trial. See tit. New Trial.

of intention to move for, 659.
non-resident guardian. See tit. Guardian.

of removal of property by, 1798.
non-residents, to, upon whom to be served, 1015.
of appeal. See tit. Appeal in Civil Actions.
of change of attorneys, 285. .
of claim against estate of decedent. See tit. Claims ag-ainst

of hearing. See tit. Procedure in Civil Action.

on petition to establish heirs, 1724.

on petition to set aside exempt property, 1465a.
how served and when, 1465a.
of intention to inove for vacation of judgment, when given

and what to contain, 1663a.
of new trial. See tit. New Trial.
of pendency of action. See tit. Lis Pendens.
of time of hearing of petition to establish heirs. 17 24.
of trial. See tits. Procedure in Civil Actions; Trial.
orders made without, vacated and modified how, 93 7.
partition, sale in, of, 755.

perpetuating testimony, of proceedings to, 2084.
prisoner, of application for discharge, 1145.
probate, of petition for, 1303.
recorded probate decree or order as, 1706.
redemption from execution, of, 703.
requisites of, 1010.
served how, 1010, 1011,

as to generally, 1010-1017.

how made, 1010, 1011.

mail, by, 1012.


[References are to sections.]


service (continued).

non-resident, on, 101. 'i.
Of, time for, 1005.
time for extension of, 1054.
sole trader. See tit. Sole Trader.
of application to become, 1812.
special, of administration iiroceediuK's l».v Kiiiirilian
demand of by relatives, 1761.
served how, 1761.
surety, to of entry of judgment against, 1055.
tenant holding over, to, and how to be served, llGl, 1 Kii'.
title to, want of. effect, 1046.
to lieirs, special
how given, 1380.

request for, what to contain, 1380.
to proceed. See tit. Notice to Proceed.
to sliow cause. See tits. Notice to Show Cause; I'r«i«'e«liire in

Civil Actions.
to take deposition. See tit. Deposition.

dispensed with where witness resides out of state, when,
to unknown owners. See tit. Notice to Unlinown Owners,
trial of

as to generally, 594.

when cause transferred to another justices' court, 836.
writ of review, of application for, 1069.
written, must be, 1010.
NOTICE OF APPEAL. See tit. Appeals in Civil Actions.
NOTICE OF HEARING. See tits. Notice: Procedure in Civil
in justices' court
form of notice, 850.
necessity for, 850.
service of notice, 850.
NOTICE OF MOTION. See tits. Motion; Notice.

in action to cjuiet title, 750.
wlKMi to be filed and contents of, 750.
NOTICE Oi-' SETTLEMENT. See tits. New Trial; Notice.
NOTICE OF THIAI,. See tits. Notice; Procedure in Civil Ac-
tions; 'I'rial.

disobedience of, secondary evidence admissible, 1938.


[References are to sections.]

NOTICE TO PRODUCE (continued).
refiLsal to produce books and papor!4

exclusion of evidence for, 1000.
presumption on, 1000.
when unnecessary, 1938.
NOTICE TO SHOW CAUSE. See tit. Procedure in Civil Actions.

in contempt proceedings, 1212.

how served in action to quiet title, 750.
affidavit of service and contents of, 750.
filing and service of, 1010.
lio«' served
as to, 1010.
on attorney, 1010.
notice after appearance, 1014.

by mail, when, 1012.

how made, 1013.
by telegraph, 1017.
of notice on non-resident, 1015.

provisions for service to not apply in contempt proceed-
ings, when, 1016.
where party has an attorney, service may be made on
him, 1015.
when made, 1012.
when and how served, 1011.
upon a party, 1011.
upon attorney, 1011.

abatement of, 731.

action for, may be instituted by whom, 731.

civil action may be brought in name of the people, 731.

continuing, 731.

definition of, 731.

enjoining, 731.

generally, 731.

jurisdiction in

of district court, 76, 731.
of supreme court, 52.
private, 731.
public, 731.
who may sue, 731.

of VFitnesses to prove fact
one sufficient, 1844.


[References are to sections.!


«f ^vitnesse.s to prove fact
one sufficient (continued).
exception to rule

in perjury, 1844.
in treason, 1844.
singular or plural words in code, 17.

may be expressed by numerals, 186.

may be used to express numbers, 180.

filing- of papers destroyed by fire or other calamity, 104fia.
NliNCUPATIVE VVII.1,. See tit. Wills.

as to generally, 1344-1346.
OATFIS AND AFFIRMATIONS. See tit. Oaths an<l llonds of Ex-
ecutors and Administrators,

by whom, 128, 177, 2093.
how, 2094.
administrator, of, 1285, 1387.

equiv'alent to oath, 2097.
form of, 2097.
in place of, 2097.
appraiser, of, 1445, 1449.

arbitrators and administrators, of, 1285, 1387.
attorney, of

on admission to practice, 278.
when acting as judge pro tempore, 72.
commissioner or elisor, of, to sell property, 726.
corporation's, how may be taken, 1348.
deputy justices' clerk, authority of to administer, 86.
executor or administrator, of, 1387.
form of, 2094-2096.
include declaration, 17.

judicial and certain officers authorized to administer, 2093.
juror, of, 604.
justices' clerk, of, 86.
of commissioner appointed to sell in mortgage foreclosure,

of guardian to render account, 1754.
of receiver. See tit. Receiver.
plionographic reporter, of, 272.
po^ver of

court to administer, 128.
judicial officer to administer, 177.


[References are to sections.]

prisoner, of, on his discharge, 1148.
public administrator
as to what taken, 1727.
authorized to administer, 1242.
receiver, of, 567,
sole trader, of, 1818.
special administrator, of, 1414.
to be administered prisoner on application for discliarg-e from

civil arrest, 1150.
to inventory. See tit. Inventory, Appraisement, aud PoNses-

.sion of Elstate.
to witness. See tit. Witnes.s.
who may administer, 1242, 2093.
■witness of

as to generally, 2094, 2097.
affirmation instead of, 2097.
additional bond, wlien required, 1389.
additional security, 1394.
appear and qualify, must, 1349.

application for new sureties to be made any time, 1406.
approval of bonds, 1393.
are required, 13S7.


application for

order on to be entered in minutes, 1406.
when may be made, 1406.
citation on

service where executor absconds or cannot be found,

time and inanner of service of, 1398.
when security insufficient, 1399, 1402.
for sale of real property, 1389.
hearing- of evidence on, 1397.
petition for

hearing of, 1397.
new bond ordered, when, 1397.

suspending power of representative until given, 1436.
when bond insufficient, 1397.
when sureties in failing condition, 1397.
security when bond insiifflcient, 1394.
suspending power until matter determined, 1401.
when not required, 1389.
when ordered, 1399.
amount of, 1388.

another representative may sue on, 1586.

[References are to sections.]

bond»4 (continued).

may be by judge at cliambers, 166.

must be by judge of superior court, 1393.
certificate of justification to be attached to, 1393.
oitntioii of Mureties

on insufficient, 1394.

to be examined as to qualifications, 1394.
competency of all representatives, 1426.
o<infliti<>n,s of

as to, 1390.

separate wliere more than one administrator, 1391.
dispensed with, when, 1396.

examination of sureties as to qualifications, 1393.
failure to give, deprives of right to administer, 1395.
form aud requisites of

as to generally, 1388.
further security, when required without application for,

insufficient, citation to sureties, 1394.
justification of sureties. See tit. Jiistifleatioii of SureUes.

as to, 1388.
liability on, 1407.
new, revolcinj? letters for

failure to give, 1405.

neglecting to give, 1400.
new surety given, releases old, 1 404.
of corporation as, 1348.

petition to require when the will provides otherwise, J 40 1.
release of sureties

citation to give other sureties, 1103.

giving now bond as, 1403.

petition for, 1403.
representative must give, 1388.

right to administer ceases where sufficient not given, 1395.
separate, where there is more than one representative, 1391.
several recoveries on, 1392.

lillng petition showing insufficient, and asking furtlier,

giving new, releases old, 1404.

release of, citation for, service where execulnr absent,
suspending powers until deternunatiuM of application to

require, 1401.
to be recorded by clerk, 1387.

[References are to sections.]

citation and requirements of judge on deficient bond, 1394.

additional security, 1394.
citation of executor, etc., to show cause against, application

for further bond, 1398.
conditions of bonds, 1390.
corporation as executor, oath of, 1348.
further security

ordered without application of party in interest, 1402.
to be ordered, 1399.
liability on bond, 1407.

to give new sureties forfeits letters, 1405.
to obey order, effect, 1400.
new sureties, 1404.

neglect to give forfeits letters, 1405.
oath of

before letters issue, 1387.
special administrator, 1414.
party in interest need not apply for suspension of executor

for failure to give security, 1402.
petition showing failing security and asking further bond,

release of sureties, 1403.

ceases when sufficient security not given, 1395.
several bonds where there are more than one administrator,

several recoveries may be had on same bond, 1392.
justification of sureties on, 1393.
must be approved, 1393.
suspending power of executor for failure to give further

security, 1401.
to be recorded, 1387.

when bond may be dispensed with, 1396.

in practice, taken by answer or demurrer, when, 433.

may be taken to the dissolution of a corporation, when, 1231.

to appointment of referee, tried how, 642.

to granting letters of administration, filed when, 1351.

to question. See tits. Evidence; Examination of Witnesses;

to questions on cross-examination. See tit. Cross-Exaniina-

waived if not taken by demurrer or answer, 434.
when taken by demurrer or answer, 433.


[Rpfei'enccs are to sections.]


arises from contract or operation of law, 26.
definition of, 26.
OKFEK TO COMPROMISE. See tit. Teiulor.
admits nothing-, 2078.
generally, 997.
in justices' courts, 895.

proceeding's on where niado after suit brought, 997.

abolished b>' the code, 7.

appeal from judgment that one is usurping, does not stay, 9 49.

construction of repeal as to certain offices, 7.

mandamus lies to compel admission to, lOS.').

repeal, by code, 7.


liow code affects, 6.

of, preserved, 6.
usurpation of, proceedings as to, 802-810.

in office of

judge, does not affect proceedings, 184.
superior judge, 70.
supreme court, 42.

in, of justice, supervisor.s to fill, 111.

when election annulled, 1127.
as to, 262.

in justices' courts, 88.

arresting witness, liability for, 2069.

assuming to be an, a contempt, 1209.

authority of majority, of, 15.

bailiffs of supreme court, 265, 266.

bond, not required to give in action in oflicial capacity, 1058.

custodian of public writing bound to give certified coi)ies

thereof, 1893.
de facto, action against, limitation of, 341.

disobedience of process, order or judgment, a conti'mpt, 1209.
entries by, prima facie evidence, 1920, 1926.
exempt from jury duty, 200.
impeachment of. See tit. ini|ic»clinicn4.

as to, generally, 36-39.
joint authority to, majority niii.\- :ict, I "p.
jiHl^iiicnt aK:ain.s(

conclusive against sui'cties, 1055.

enforced how, 710.



[References are to sections.]

OFFICER (continued).

affidavits, etc., power to take, 179.

contempt, power to punish for, 178, 1209^.

controlling power of courts over, 128.

depositions, taking, 2020.

exempt from jury duty, 200.

generally, 156-172.

notice of public and private official acts, 1825.

powers, etc., of, 176.

to have no partner practicing law, 172.
liiuitatiou of action ag^ainst

as to generally, 339, 341.

for escape of prisoner, 340.
niaj'ority may act, when, 15.
ministerial, powers of, 128, 262.
misbehavior of, contempt, when, 1209.
oaths, what authorized to administer, 2093.
of courts of impeachment, 37.

regularly appointed, 1963.

to perform official duty, 1963.
replevin, not bound by affidavit of value in, when, 473.
secretaries of supreme court, 265, 266.

service of naandamus upon majority of a board, effect of, 1096.
supreme court, of, 265, 266.

traveling expenses of, 47.
usurpation of office. See tit. Usurpation of Office.

as to generally, 802-810.
venue in actions against, 393.

verification of pleadings where an officer is a party, 446.
witness, as a, 1881.
OFFICIAIi BALLOT. See tit. Elections.
action on

of administrator. See tit. Administrator.

of county treasurer. See tit. County Treasurer.

of guardian. See tit. Guardian.

how proved, 1918.
OFFICIAL REPORTER. See tit. Phonosraitliie Reporter.

eminent domain, 1238.
OLOGRAPHIC WILLS. See tits. Hologrraphic Wills; Wills.

as to how proved, 1309.

may be taken down in sliortliand, 274a.


[References are to sections.]

OPINION (continued).

of supreme court to be in writing, 49.
of trial court. See tit. Trial by Court.
OPIIVIOIV EVIDENCE. See tits. Evidonoe; > on-expert.
ORAIi EXAMIXATIOX. See tit. E.viiiiiinntioii of WitiieNseH.

definition of, 2005.
ORAfi INTEUROtJATOKIES. See tit. DeiioMitioiiN.
ORDERfii. See tit.«. Motion; Order.s and DeereeN-. Order of Sale.
amend, power of court to, 128.

from, time for, 939.

lies from special orders after final judgment, 963.
application repeated for same, prohibited, 182, 183.
appointing receiver. See tit. Receiver.
arrest, of, 478-504.
conclusiveness of, 1909, 1962.
condemnation, of, in eminent domain, 12.S3.
deemed to be excepted to, 647.
delinition of, 1003, 1064.
disobedience of, a contempt, 1209.
escheat proceedings, to appear in, 1269.
ex parte made out of court may be vacated or modified, with

or without notice, 937.
fixing time of hearing of petition to estal)lish heirs, 1724.
for arrest. See tits. Arrest; Bail,
for payment of money

execution on, 1007.

how enforced, 1007.
for service by publication. See tit. Piiblieation of Smniiioiis.

evidence of, 1962.

to be pleaded, when, 1962.
in injunction. See tit. lujiincUon.

to show cause why should not issue, 530.
in special proceedings, same meaning as in civil artions. 106 1.
inadvertence, relief from, 473.
inspection of writings, for, 1000.

jurisdiction of justices' court over violation of, 103.
mistake, relief from, 473.
motions and orders, 1003, 1006.
neglect, excusable, relief from, 473.
of extra sessions of superior court, 67b.
out of court and without notice, vacation and mndificalioii.

payment of money, for, execution on, 1007.
po'iTer of

judges to grant and hear at chambers, 166.

judicial officers to compel ob<-<1iiMi»e tn. 177.


[References are to sections.]

ORDERS (continued).

probate court, of, form of, in general, 1704.
quo warranto, for arrest of defendant in, 804.
removal of attorney for disobeying, 287.
repeateil application

for same, proliibited, 1S2, 183.
when a contempt, 183.
reviewed, liow, 936.

revocation of, refused by another judge, 183.
special proceedings, in, 1064.

subsequent applications for prohibited where once refused.
punishment for violation of provision, 183.
surprise, relief from, 473.

survey of land, order for in ejectment, 742, 743.
telegraph, service by, 1017.
to sell property of decedent, 1523.
to sliow

niust be served, 1005.

on application to sell mining property of decedent, 1580.
hearing of, 1580.
service of, 1580.
transfer of order to show cause, 1006.
what it is, 1003.
where may be made, 1004.
ORDER OF PROOF. See tits. Eviilenee; Trial.
ORDER OP SALE. See tit. Sale.

recording to impart notice from date of filing, 1706.
to be entered on minutes, 1704.

how pleaded in police court, 929.
jurisdiction of justice of peace, 103.

violation of, trial when by court and when by jury, 932.
ORDINARY PRUDENCE. See tit. Neg^ligenee.

of supreme court. See tits. Courts; Justice of Supreme <'ourt.
OTHER LABORER. See tit. Meolianios' Lieu.
OUSTER. See tit. Ejectment.

in partition, 1681.
PAPERS. See tit. Notices and Papers.

destroyed by flre or other calamity, filing nunc pro tunc,

lost, how supplied, 1045.
on appeal

as to generally. 953a.

court reporter to transcribe report of trial, 953a.

[References are to sections.]


on appeal (continued).

transcript to be presented to judge for approval, 953a.
what may be incorporated in, 953a.
service of. See tit. Service.
as to generally, 1011-1017.
in diverse actions, 1019.
to be furnished by appellant on appeal, 950.
what may be taken by jury on retiring, 612.
what to be incorporated in transcript on appeal, 953a.
ivlth defective title
valid when, 1046.
void when, 1046.

parent may sue for death or injury of minor, 376.
seduction of daughter, parent may sue for, 375.
PAROL EVIDENCE. See tit. Evidence.

of custom, cannot be introduced to vary written contract, 1875.
to explain latent ambiguity, 1856.
to vary writing, inadmissible, 1856.
when admissible to explain writing, 1856.
PARTIAL DISTRIBUTION. See tits. Distributiim; Estates of

may be dispensed with, when, 1663.
order for payment and suit thereon, 1662.
costs on, 1661.

decree prayed for to require bond which must be given, 1661.
executor or other person may resist application for, 1660.
may order whole or part of share to be delivered, 1661.
notice of application for legacies, 1659.
order for payment of bond and suit thereon, 1662.
I)ayment of legacies upon giving bonds, as to, 1658.

may be made after one year, 1663.
application may be resisted, 1663.
bond to be filed by heir, 1663.

cost of proceedings shall be paid by applicant, 1663.
court may suspend proceedings, 1663.
delivery of proceeds to executor, 1663.
when bond may be dispensed witli. 1663.
when court must grant i)etitioi), 1663.
prior to settlement, 1658.
suit on bond, 1662.

wliere partition necessary, liow made, 1661.
I'ARTICLLARS, RILL OP. See tit. Bill of Particnlnr.t.
as to generally, 454.


[References are to sections.]

PARTIES IN INTEREST. See tits. Parties to Action; Party

Beneflcially Interested; Pleadinj^s.
PARTIES TO ACTION. See tit. Pleading.s.

abatement by death, etc., none, 385.
absence of

order made during, deemed excepted to, 647.

postponement of trial for, 595.
action to be in name of party in interest, 367.
adding- new, 389, 473.
additional, how brought in, 3S9.
administrator. See tit. Executor and Administrator.

as to, g-enerally, 369, 1586.

action by on bond of former executor, etc., maj' be in liis
individual name, 1586.

may sue without beneficiary, 369.

or executor, may sue without joining beneficiary, 369.
adverse claim, in action to determine, 380, 381, 738.
amended and supplemental pleadings to bring in, neces-
sary, 389.
amendment, changing, 473.

application to be made party bj' interested person, 389.
as witness, 1789.

associates may be sued by name of association, 388.
association, suing, 388.

beneficiary need not be joined, when, 369.
bills of exchange, parties may be sued together, 383.
bringing in other parties. See til. Brinsing in Parties.
character, good admissibility of evidence of, 2053.
child, injury or death of, 376.

claimants under a common source of title may unite, 3S1.
cloud on title, in suit to remove, 381.

interest, one may sue for all, 382.

source, holding under, may join, 381.
contempt by, 1209.
coparceners may join, 381, 384.
corporations. See tit. Corporations,

may sue or defend jointly or severally, 384.

part may sue or defend for all, 381, 384.
court may order others to be brought in, when, 389.
deatli of

action for

by negligence, 377.
of child, 376.

of party, when not to abate action, 385.

or disability of party, effect of, 385.
defect of, demurrer for, 430.


[References are to sections.]

PARTIES TO ACTION (continued).

all persons interested may be, 379, 382.

definition of, 308, lOfiS.

in action

against fire department, 390.

against vessel, 814.

to determine conflicting' claims to real property, 380.

incompetent person to appear by guardian, 372.

infant to appear by guardian, 372.

insane person to appear by guardian, 372.

plaintiff may sue in one action the different parties
in insurance policies, 383.
to commercial paper, 383.

substitution of, 386.

tenants in common may sever in defending actions, 384.

tliose united in interest may be joined as, 382.

wiiere married women sue, 370.

wlio may be Joined as defendants, 379.

wife may defend, when, 371.
defense by one, for benefit of all, 382.
definition of

defendant, 308, 1063.

plaintiff, 308.

Online LibraryCaliforniaThe 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 text (page 159 of 168)