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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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149, 152 (is in derogation of common law and to be strictly
construed); 30 C. 610, 611, 617 (construed); 31 C. 342, 351 (con-
strued); 34 C. 391, 403, 94 A. D. 742 (construed); 37 C. 458, 464
(construed); 44 C. 355, 361 (construed); 47 C. 144, 145 (con-
strued); 64 C. 529, 597, 2 P. 418 (no service of summons or
complaint on mother or other person having minors in charge
is required when).

As to affidavit for service by publication a part of judgment-
roll, see Kerr's Cyc. C. C. P. § 670 and note.

As to affidavit of publication, see 66 A. S. 589; 35 L. 451.

As to affidavit to prove publication, see Kerr's Cyc. C. C. P.
§ 2010 and note.

As to affidavits without title of action, see Kerr's Cyc. C. C.
P. § 1045 and note.

As to application of this section to justices' court, see Kerr's
Cyc. C. C. P. § 849 and note.

As to constructive or substituted service giving jurisdiction
to foreclose lien, see 17 L. 351.

As to decree of alimony in case of service of summons by
publication, see 54 A. S. 604; 32 L. 289; also note 19 L. 814-821.

As to divorce, effect of service by publication in, see Kerr's
Cyc. C. C. P. §416 note pars. 10, 11, 12, 13.

As to judgment after failure to answer, see Kerr's Cyc. C.
C. P. § 585 and note.

As to judgment rendered without jurisdiction on merely sub-
stituted service, see brief 44 L. 802.

As to manner of publication, see Kerr's Cyc. C. C. P. § 414 and
note.

As to proof of service by affidavit, see Kerr's Cyc. C. C. P.
§ 2009 and note.

As to proof of service by publication, see Kerr's Cyc. C. C.
P. § 415 and note.

As to publication of changed names, see Kerr's Cyc. C. C. P.
§ 1279 and note.

258



Tit. v.] MANNER OF PUBLICATION. §413

As to publication of summons in escheat proceedings, see
Kerr's Cyc. C. C. P. § 1269 and note.

As to service by publication — In partition, see Kerr's Cyc.
C. C. P. § 757 and note.

Same — Not authorizing personal judgments. — See 29 A. S.
850; 14 L. 562.

As to service on unknown or non-resident parties in par-
tition, see Kerr's Cyc. C. C. P. § 757 and note.

As to summons to unknown parties in suit to quiet title, see
Kerr's Cyc. C. C. P. § 750 and note.

As to validity of personal judgments rendered upon construc-
tive service of process, see briefs 30 L. 628; 32 L. 82, 289: 33 L.
783; 17 PI. & Pr. 29, 39.

As to verification of pleading, see Kerr's Cyc. C. C. P. § 446
and note.

§ 413. MANNER OF PUBLICATION. The order must 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; but publication against a defendant resid-
ing out of the state, or absent therefrom, must not be less
than two months. In case of publication,

>Vh«'re the residence of a non-resident or absent defend-
ant is known, the court or judge must 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 o.om])Iaint
out of the state is equivalent to publication and deposit in
the post-office, and in either case the service of the sum-
mons is complete at the expiration (jf the time prescribed
by the order for publication.

History: Enacted Marcii 11, 1872, founded upon § 31 uf Prac-
tice Act; amended Marcli 24, 1874, Code Amdts. 1S73-4, p. 299;
liy Code Commission, Act March 8, 1901, Stats, and Amdts.
1900-1. p. 131, act held unconstitutional, see history, § 5 ante.

See Kerr's Cyc. C. C. P. for 27 pars, annotation.

Code Heedon. — 67 C. 18, 19, 6 P. 849 (cited); 68 C. 82, 87.
8 P. 679 (cited); 72 C. 65, 68, 69, 72, 1 A. S. 34, 13 P. 73, 74, 76
(construed); 76 C. 610, 614, 615, 18 P. 777, 780 (construed); 78 C.
34, 35. 37, 12 A. S. 17, 20 P. 147 (construed); 86 C. 580. 583,

259



§414 CODE OF CIVTI. rROCEDURE. [pt U.

21 A. S. 67, 25 P. 51, 52 (construed); 92 C. 344, 355, 27 A. S. 143,
28 P. 563, 566, 16 L. 361 (cited); 101 C. 246, 248, 249, 35 P. 765,
766 (construed); 116 C. 91, 93, 47 P. 927 (construed); 133 C.
459, 460, 65 P. 974 (construed); 137 C. 420, 426, 70 P. 299 (con-
strued in connection with § 412, in considering sufficiency of
affidavit for publication): 144 C. 422, 423, 424, 77 P. 998 (con-
strued); 144 C. 487, 490, 77 P. 1043 (cited); 148 C. 577, 580, 113
A. S. 308, 84 P. 47 (applied with other sections); 150 C. 289,
322, 88 P. 356, 8 L. N. S. 692 (considered with respect to notice
required to be given in act to establish land titles); 151 C.
40, 44, 90 P. 129 (service of notice under the " Torrens Law"
must be personal except where §§ 412, 413 authorizes service
by publication).

Practice Act §31. — 1 C. 167, 176 (referred to); 5 C. 465, 466
(construed); 6 C. 176, 182, 184 (construed); 9 C. 107, 108, 112
(construed); 12 C. 100, 102, 103 (construed); 23 C. 85, 90, 91
(construed); 26 C. 149, 152, 153, 154, 155 (construed); 27 C. 295,
299 (construed); 31 C. 342, 351 (construed); 32 C. 347, 350, 353
(construed); 34 C. 391, 404, 94 A. D. 742 (construed).

As to divorce, publication in, see Kerr's Cyc. C. C. P. § 416
and note.

As to judgment after service by publication for non-resident,
see 14 L. 562; also 35 L. 70.

As to judgment by default, see Kerr's Cyc. C. C. P. § 585 subd.
3 and note; 6 PI. & Pr. 1 et seq.; 30 Cent. Dig. col. 209, §§151-
340.

As to jurisdiction after service by publication, see Kerr's
Cyc. C. C. P. § 416 and note.

As to proof of publication, see Kerr's Cyc. C. C. P. §§ 415,
2010, 2011 and notes.

As to proof of service by affidavit, see Kerr's Cyc. C. Cs P.
§ 2009 and note.

As to service by publication of summons in proceedings
against delinquent purchasers of land from the state, see
Kerr's Cyc. Pol. C. § 3549 and note.

§414. PROCEEDINGS WHERE THERE ARE SEVER.41
DEFENDANTS, AND PART ONLY ARE SERVED. When the
action is against two or more defendants jointly or severally
liable on a contract, and the summons is served on one or
more, but not on all of them, the plaintiff may proceed
against the defendants served in the same manner as if they
were the only defendants.

History: Enacted March 11, 1872, founded upon § 32 of Prac-
tice Act.

260



Tit. v.] SERVING PART ONI A'. §4^4

See Kerr's Cyc. C. C. P. for 23 pars, annotation.

€o«le section.— 50 C. 530, 532 (construed); 58 C. 605, 607
(cited); 67 C. 143, 146, 147, 7 P. 413 (construed); 68 C. 422, 426,
427, 428, 9 P. 727, 729 (construed); 69 C. 616, 621, 11 P. 456, 459
(cited); 69 C. 456, 458, 10 P. 785 (applied): 70 C. 108, 114, 9 P.
180, 11 P. 599 (construed); 70 C. 403, 405, 59 A. S. 423, 11 P.
833, 834 (cited); 73 C. 389, 391, 15 P. 20, 21 (referred to); 75 C.
590, 593, 17 P. 708, 709 (construed); 94 C. 297, 299. 29 P. 505, 506
(referred to); 103 C. 204, 207, 37 P. 218, 219 (cited); 125 C. 266,
270, 57 P. 996 (cited); 136 C. 301, 302, 68 P. 817 (construed);
144 C. 3, 4, 77 P. 662 (referred to); 148 C. 577, 580, 113 A. S.
308, 84 P. 47 (applied with other sections); 150 C. 772, 774, 90
P. 118 (cited); 40 F. 609, 610 (applied).

Practice Act §32. — 1 C. 167, 168 (construed); 2 C. 88, 89 (con-
strued); 6 C. 183 (supersedes common-law remedy of outlawry);
10 C. 512, 513 (construed); 12 C. 349, 351 (construed); 17 C.
564, 566 (construed); 35 C. 602, 605 (cited); 39 C. 93, 95 (con-
strued); 50 C. 530, 532 (applied); 67 C. 143, 146, 7 P. 413 (does
not autliorize what judgment in action against copartners);
68 C. 422, 426. 427, 9 P. 727 (was basis of this section).

As to action against business associates, see Kerr's Cyc. C.
C. P. § 388 and note.

As to action against different parties to commercial paper or
insurance policies, see Kerr's Cyc. C. C. P. § 383 and note.

As to appearance equivalent to service, see Kerr's Cyc. C.
C. P. §§ 416, 1014 and notes.

As to costs where defendant does not answer in action to
quiet title, see Kerr's Cyc. C. C. P. § 739 and note.

As to entry of default for failure to answer, see Kerr's Cyc.
C. C. P. §§ 432, 585, 872 and notes.

As to how defendants are served, see Kerr's Cyc. C. C. P.
§§ 410, 411 and notes.

As to joining persons severally liable upon instrument, see
Kerr's Cyc. C. C. P. § 383 and note.

As to joint debtors after judgment, proceedings against, see
Kerr's Cyc. C. C. P. §§ 989, 2010. 2011 and notes.

As to judgment against only one of two joint tort-feasors,
see 22 L. 261.

As to judgment against principal only on joint bond, see
34 A. S. 880, 19 L. 500.

As to judgment against some defendants, proceedings con-
tinuing against tlie others, see Kerr's Cyc. C. C. P. § 579 and
note.

As to judgment by default against one only of several par-
ties to joint contract, see 13 L. 649.

As to judgment on joint liability, effect as to person not
served, see 1 L. 311.

261



§415 CODE OF CTVTL PROCEDURE. [Pt. II.

As to judgment void for lack of process, see 45 A. S. 872, 23
L. 120.

As to judgment without opportunity to I)e heard, see 11 A. S.
808, 3 li. 620.

As to non-abatement of action, by death, marriage or otlier
disability, see Kerr's Cyc. C. C. P. § 385 and note.

As to ordering other parties brought in as defendants, see
Kerr's Cyc. C. C. P. § 389 and note; also ante § 378 and note.

As to partners under fictitious names filing certificate, see
Kerr's Cyc. C. C. §§ 2466 et seq. and notes.

As to proof of service, see Kerr's Cyc. C. C. P. §§ 415, 2009-
2011 and notes.

As to release of joint debtors not a discharge of others, see
Kerr's Cyc. C. C. § 1543 and note.

As to relief from joint judgment where some defendants are
not served, see 13 L. 689.

As to relief to plaintiff if there be no answer, see Kerr's
Cyc. C. C. P. § 580 and note.

As to service of copy of complaint, see Kerr's Cyc. C. C. P.
§§ 410, 527 and notes.

As to service of notice on tenant holding over, see Kerr's
Cyc. C. C. P. § 1162 and note.

As to service on corporation, see Kerr's Cyc. C. C. P. § 411
and note.

As to service on guardian, being equivalent to service on
ward, see Kerr's Cyc. C. C. P. § 1722 and note.

As to substitution of another for defendant, see Kerr's Cyc.
C. C. P. § 386 and note.

As to tenants in common proceeding against, see Kerr's Cyc.
C. C. P. § 384 and note.

§415. PROOF OF SERVICE, HOW MADE. Proof of the
service of summons and complaint must be as follows:

1. If served by the sheriff, his certificate thereof;

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 has been deposited; or,

4. The written admission of the defendant.

In case of service otherwise than by publication, the cer-
tificate or affidavit must state the time and place of service.

History: Enacted March 11, 1872, founded upon §§ 33, 34 of
Practice Act: amended by Code Commission, Act March 8, 1901,

262



Tit. v.] SERVICE — PROOF, HOW MADE. § 415

Stats, and Amdts. 1900-1, p. 131, act held unconstitutional, see
history, § 5 ante.

See Kerr's Cyc. C. C. P. for 50 pars, annotation.

59 C. 490, 492, 493 (construed); 70 C. 431, 436 (applied — erron-
eously cited as §412), 11 P. 662 (erroneously cited in syllabi
as §412), 664 (correct citation); 72 C. 65, 74, 1 A. S. 34, 13 P.
73, 77 (construed); 73 C. 599, 600, 15 P. 302, 303 (applied); 75 C.
213, 220, 7 A. S. 146, 151, 16 P. 887 (construed); 92 C. 344, 354,
355, 27 A. S. 143, 28 P. 563, 16 L." 361 (applied); 93 C. 600, 607,
29 P. 220 (applied); 95 C. 652, 653, 30 P. 762 (construed); 99 C.
204, 206, 33 P. 853 (cited): 101 C. 571. 573, 36 P. 9 (construed):
103 C.'519, 522, 42 A. S. 145, 37 P. 509 (construed); 103 C. 536,
537, 37 P. 523 (construed); 116 C. 424, 425, 48 P. 270 (construed);
119 C. 283, 301, 63 A. S. 108, 51 P. 2, 542 (construed): 128 C.
330, 332, 60 P. 854 (construed); 134 C. 621, 623, 625, 66 P. 872
(construed): 148 C. 577, 580, 113 A. S. 308, 84 P. 47 (applied
as to proof of service).

Praotice Act §33. — 5 C. 449 (construed); 9 C. 315, 321 (con-
strued): 9 C. 616, 637 (construed); 10 C. 343, 344 (construed);
11 C. 307, 314 (construed); 11 C. 372, 377 (construed); 28 C. 151,
153 (construed): 33 C. 505, 512, 514 (construed); 34 C. 391, 404,
425, 430, 94 A. D. 742 (referred to); 37 C. 458, 464 (construed);
45 C. 455, 463, 464 (construed).

As to affidavit of publication, see Kerr's Cyc. C. C. P. § 413
and note.

As to affidavit of service, see Kerr's Cyc. C. C. P. § 410 and
note.

As to affidavit or proof of service in judgment-roll, see Kerr's
Cyc. C. C. P. § 670 and note.

As to application of this section to justices' court, see Kerr's
Cyc. C. C. P. § 849 and note.

As to coroner to make service when slieriff a party, see Kerr's
Cyc. Pol. C. §4191 and note; also 40 Cent. Dig. col. 2586, §61;
col. 2593, § 66.

As to coroner, wlien to act as sheriff, see Kerr'g Pocket Pol,
C. § 4290.

As to defect In proof of publication of summons, see 40 Cent.
Dig. col. 2735, §179; col. 2742, §183; 17 L. 66.

As to directions to sheriff to be written, see Pol. C. § 485.

As to divorce case, absence of proof of service of summons
on collateral attack, see 33 D. 783.

As to duty of sheriff to serve process, see Kerr's Cyc. Pol. C.
§ 4 176 and note.

As to elisor, when court may appoint to make service, see
Kerr's Cyc. Pol. C. §4192 and note: 40 Cent. Dig. col. 2590, §64;
43 Cent. Dig. col. 3441, § IOC.

263



§416 CODE OF Civil. PROCEDURE. [Pt. H.

As to jurisdiction of action, when acquired, see Kerr's Cyc.
C. C. P. § 416 and note.

As to justification of sherifE in execution of regular process,
see Kerr's Cyc. Pol. C. § 4187 and note.

As to proof of service by affidavit, see Kerr's Cyc. C. C. P.
S 2009 and note; 40 Cent. Dig. col. 2735, §§177-180; col. 2742,
§ 183.

As to proof of service being- a part of judgment-roll, see
Kerr's Cyc. C. C. P. § 670 anel note.

As to return by sheriff, see Kerr's Cyc. C. C. P. § 410 and
note; 40 Cent. Dig. col. 2702, §§ 155-162.

As to return by sheriff of service of process to another
county, see Kerr's Pocket Pol. C. § 4177.

As to return of sheriff prima facie evidence, see Kerr's Cyc.
Pol. C. § 4178 and note.

As to service of papers on sheriff, see Kerr's Pocket Pol. C.
§4190; 40 Cent. Dig. col. 2588, §§60, 61, 66.

As to service of summons by publication, see 10 L. 504; 16 L.
231, brief 36 L. 402; 40 Cent. Dig. col. 2627. §§ 98 et seq.

As to service of summons in justices' court, see Kerr's Cyc.
C. C. P. § 848 and note.

As to summons in action to quiet title, see Kerr's Cyc. C.
C. P. § 750 and note.

Not sufficient in superior court, when. — See Kerr's Cyc. C.
C. P. § 410 note par. 36.

§416. WHEN JUEISDICTION OF ACTIO ACQIIKED.

From the time of the service of the summons and of a copy
of the complaint in a civil action, where service of a copy of
the complaint is required, or of the completion of the pub-
lication when service by publication is ordered, the court is
deemed to have acquired jurisdiction of the parties, and to
have control of all the subsequent proceedings. The volun-
tary appearance of a defendant is equivalent to personal
service of the summons and copy of the complaint upon him.

History: Enacted March 11, 1872, re-enactment of § 35 of

Practice Act; amended March 24, 1874, Code Amdts. 1873-4.
p. 299.

See Kerr's Cyc. C. C. P. for 103 pars, annotation.

Code section. — 53 C. 737, 740 (construed); 56 C. 629, 630 (con-
strued); 59 C. 274 (construed); 59 C. 471, 473, 474 (construed);
60 C. 296, 298, 299 (applied); 64 C. 529, 598, 2 P. 418 (applied);
67 C. 1, 4, 6 P. 867 (construed); 67 C. 108, 109, 7 P. 179 (con-
strued); 72 C. 65, 68, 1 A. S. 34. 13 P. 73 (construed); 73 C. 599,

264



Tit. v.] JTIRISDTCTION, WTTJ'^X AOQITIRED. §41(;

600, 15 P. 302 (construed); 75 C. 213, 220, 7 A. S. 146, 16 P.
887, 889 (construed); 75 C. 237, 239, 17 P. 197 (applied); 75 C.
376, 378, 17 P. 433 (construed): S4 C. 27, 20, 23 P. 1026 (re-
ferred to); 87 C. 151, 152, 25 P. 270 (construed); 92 C. 344, 354.
355. 27 A. S. 143, 28 P. 563, 566, 16 E. 36 (construed); 93 C.
600, 607, 29 P. 220 (applied); 99 C. 204, 205, 33 P. 853 (referred
to): 99 C. 416, 417. 37 A. S. 67, 34 P. 102 (construed); 103 C.
519, 522, 42 A. S. 145, 37 P. 509 (construed); 115 C. 689, 692, 47
P. 698 (construed); 116 C. 424, 425, 48 P. 370 (construed); 117
C. 577, 5S1, 47 P. 602, 49 P. 714 (construed); 122 C. 117, 120,
54 P. 518 (construed); 122 C. 448, 450, 55 P. 125 (construed with
M014); 125 C. 296, 300, 57 P. 1006 (applied); 126 C. 418, 421.
58 P. 941, 59 P. 296 (construed): 128 C. 227, 229, 60 P. G8C (con-
strued); 133 C. 69, 71, 65 P. 142 (jurisdiction of action on note
and mortgage); 141 C. 653, 657, 75 P. 315 (construed); 144 C.
19, 30, 77 P. 712 (applied); 144 C. 410, 415, 77 P. 1007 (con-
strued); 98 F. 574, 575 (there is no jurisdiction of defendant
where his death occurs before service of process); 106 F. 433
(time for petition for removal of cause to federal court after
voluntary appearance in state court); 178 U. S. 421, 428, 44
Jj. ed. 1134, 1137 (jurisdiction of "subsequent proceedings" after
a defendant's voluntary appearance).

I'raotioe Act § .SS.— 1 C. 24, 29 (construed); 3 C. 421, 424 (con-
strued); 6 C. 294, 295. 296 (construed): 6 C. 685, 688 (construed):
7 C. 54, 63, 64 (construed); 8 C. 340 (construed); 8 C. 449, 455
(construed); 8 C. 562, 568 (construed); 9 C. 107, 111 (construed);
9 C. 315, 321 (construed); 11 C. 372, 379 (construed); 12 C. 100,
103 (construed); 13 C. 191, 200 (construed); 14 C. 117, 120 (con-
strued); 21 C. 51, 55 (construed); 23 C. 401, 403 (construed);
30 C. 192, 200 (construed); 35 C. 296, 300 (construed); 35 C.
528, 534 (construed); 39 C. 439, 441 (construed); 42 C. 439, 443
(construed); 43 C. 385, 388 (construed); 44 C. 157, 161 (con-
strued); 44 C. 355, 361 (construed); 45 C. 455, 463 (construed).

As to admission of service, see Kerr's Cyc. C. C. P. § 415 and
note; ante §415 note; 40 Cent. Dig. col. 2758, §54.

As to affidavit of service, see Kerr's Cyc. C. C. P. §§ 406, 410
and notes; ante § 415, note.

As to appearance being equivalent to service, see Kerr's Cyc.
C. C. P. §1014 and note; 3 Cent. Dig. col. 3015, §§79 et seq.;
2 Decen. Dig. p. 964, §§ 11-15.

As to appearance in action — Generally, see Kerr's Cyc. C.
C. P. §§ 406 and 1014 and notes.

Same — Waives exemption from process. — See 3 Cent. Dig.
col. 3000, § 62.

Same — Waives objections. — See 2 Decen. Dig. p. 973, §§21-25.

As to application of above section to justices' courts, see
Kerr's Cyc. C. C. P. § 849 and note.

265



§ 416 CODK OF Civil. PROCEDURE. [Pt. II.

As to entry of default for failure to answer, see Kerr's Cyc.
C. C. P. §§ 432, 585, 872 and notes.

As to impeacliment of record by evidence of want of juris-
diction, see Kerr's Cyc. C. C. P. § 1916 and note.

As to judgment void *for lack of process or appearance, see
45 A. S. 872, 23 L. 120.

As to judgment without opportunity to be heard, see 11
A. S. 808; 3 L. 620.

As to jurisdiction, evidence to establish, see 61 A. S. 495.

As to jurisdiction over absent citizen, see 53 A. S. 179-191.

As to jurisdiction sufficient to sustain a judgment, see Kerr's
Cyc. C. C. P. § 1917 and note.

As to jurisdiction, what constitutes, see Kerr's Cyc. C. C. P.
§ 1917 and note.

As to jurisdictional defects in process, see 61 A. S. 485.

As to need to prove facts conferring jurisdiction, see Kerr's
Cyc. C. C. P. § 456 and note.

As to powers of attorney, see Kerr's Cyc. C. C. P. § 283 and
note; also 75 A. D. 148; 87 A. D. 170.

As to presumption in favor of jurisdiction, see Kerr's Cyc.
C .C. P. § 1963 and note.

As to proof of service, see Kerr's Cyc. C. C. P. § 415 and note;
also §§ 2009, 2011 and notes.

As to publication of summons, see Kerr's Cyc. C. C. P. § 413
and note; ante § 415, note.

As to relief from judgment when rendered on publication by
process, see 16 L. 361.

As to service of summons, see Kerr's Cyc. C. C. P. § 411 and
note; ante § 415, note.

As to service of summons by publication, see ante § 415, note;
61 A. S. 494.

As to sufficiency of jurisdiction to sustain judgment, see
Kerr's Cyc. C. C. P. § 1917 and note.

As to vacating judgments and decrees on motion when not
specially authorized by statute, see 60 A. S. 633.

As to validity of decree of divorce on publication, see 19 L.
814.

As to waiver of summons, see Kerr's Cyc. C. C. P. § 406 and
note.



266



Tit. VI, ch. I.] PLEADINGS DEFINED. §§420, 421



TITLE VI.

OP^ THE PLEADINGS IN CIVIL ACTIONS.

C'liapter I. Tlie Pleadings in General, §ii 420-422.

II. The Complaint. S§ 4 25-427.

III. Demurrer to the Complaint, §§ 430-434.

IV. The Answer, §§ 437-442.

V. Demurrer to Answer, §§ 443, 444.
VI. Verification of Pleading:s, §§ 446-449.
VII. General Rules of Pleading. §§ 452-465.
VIII. Variance — Mistakes in Pleadings and Amend-
ments, §§ 469-476.



CHAPTER I.

THE PLEADINGS IN GENERAL.

§ 420. Definition of pleadings.

§ 421. This code prescribes the form and rules of pleadings.

§ 422. What pleadings are allowed.

§420. DEFIMTIOA' OF PLEADINGS. The pleadings are
the formal allegations by the parties of their respective
claims and defenses, for the judgment of the court.

HIstorj-: Enacted March 11, 1872, re-enactment of S 36 of
Practice Act.

See Kerr's Cyc. C. C. P. for 5 pars, annotation.
71 C. 513, 522, 12 P. 570, 575 (construed): 117 C. 237, 240,
49 P. 1 (construed and applied).

As to pai-ties to civil action, see ante §§ 367 et sey. and notes.

§ 421. THIS (ODE PRESCRIBES THE FORM AND RULES

OF PLEADINGS. The forms of pleading in civil actions, and
the rules by which the sufficiency of the pleadings is to be
determined, are those prescribed by this code.

History: Enacted March 11, 1S72, re-enactment of §37 of
I'ractice Act.

267



§422 CODE OF CIVIL PROCEDURE, [pt. II, Tit. VI.

See Kerr's Cyc. C. C. P. for 6 pars, annotation.

Code section. — 83 C. 393, 397, 23 P. 303, 304 (construed and
applied); 114 C. 466, 475, 46 P. 383 (cited with other section.s
in dis. op.); 139 C. 469, 474, 73 P. 145 (construed with other
sections).

Practice Act §37. — 9 C. 453, 467, 475 (construed); 16 C. 220,
243 (construed).

As to forms of action and distinctions as to such existing at
common law abolished, see Kerr's Cyc. C. C. P. § 426 and note
pars. 7-9.

Same — -One form of action only. — See Kerr's Cyc. C. C. P.
§ 307 and note.

As to general rules of pleading-, see Kerr's Cyc. C. C. P. §§ 4.?2
et seq. and notes.

As to pleadings in special proceedings, see Kerr's Cyc. C. C. P.
§§ 1063 et seq. and notes.

As to rule of construction of code, see Kerr's Cyc. C. C. P.
g 4 and note.

As to rules of pleading, construction of, etc., see Kerr's Cyc.
C. C. P. §§452 et seq. and notes; 39 Cent. Dig. col. 1177, §§66 et
seq.

§422. WHAT PLEADINGS ARE ALLOWED. The only
pleadings allowed on the part of the plaintiff are:

1. The complaint;

2. The demurrer to the answer;

3. The demurrer to the cross-complaint:

4. The answer to the cress-complaint;
And on the part of the defendant:

1. The demurrer to the complaint;

2. The answer;

3. The cross-complaint;

4. The demurrer to the answer to the cross-complaint.

History: Enacted March 11, 1872, founded upon §38 of Prac-
tice Act; amended by Code Commission, Act March 8, 1901, Stat.s.
and Amdts. 1900-1, p. 132, act held unconstitutional, see history,
§ 5 ante; amended March 20, 1907, Stats, and Amdts. 1907, p. 705.

See Kerr's Cyc. C. C. P. for 5 pars, annotation.

Code section. — 56 C. 322, 325 (construed with post §§ 1312 and
1318); 114 C. 466, 475, 46 P. 383 (cited with other sections in
dis. op.).

Practice Act §38. — 1 C. 167, 174 (facts constituting case of
action, whether legal or equitable, to be stated); 34 C. 25, 27,

268



Ch. II.] COMPLAINT, CONTENTS OF. §§ 425, 426

28 (copy of pleading to be served); 38 C. 584, 585 (construed);
39 C. 169, 177 (construed).

As to answer, see Kerr's Cyc. C. C. P. §§ 437 et seq. and notes;
1 PI. & Pr. 779.

As to complaint, see Kerr's Cyc. C. C. P. §§ 425, 426 and
notes; 1 PI. & Pr. 194; 4 PI. & Pr. 587, 600.

As to demurrer to complaint, see Kerr's Cyc. C. C. P. § 430
and note; 6 PI. & Pr. 322.

As to demurrer to the answer, see Kerr's Cyc. C. C. P. §§ 443,



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