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Process defined. — See Pol. C. §4175; 6 W. & P. 5643.

Words used in boundaries — As to, see Kerr's Cyc. Pol. C.
§§3, 903-907 and notes.

§18. STATUTES, ETC., Ii\tONSISTENT WITH CODE
KEPEALED. No statute, law, or rule is continued in force,
because it is consistent with the provisions of this code on
the same subject; but in all cases provided for by this code,
all statutes, laws, and rules heretofore in force in this state,
whether consistent or not with the provisions of this code
unless expressly continued in force by it, are repealed and
abrogated. This repeal or abrogation does not revive any
former law heretofore repealed, nor does it affect any right
already existing or accrued, or any action or proceeding
already taken, except as in this code provided; nor does it
affect any private statute not expressly repealed,

13



§§ 19, 20 CODE OP CIVIL PROCEDURE.

History: Enacted March 11, 1872; amended by Code Com-
mission, Act March 8, 1901, act lield unconstitutional, see his-
tory, § 5 ante.

See Kerr's Cyc. C. C. P. for 3 2 pars, annotation.

47 C. 58, 59 (applied with § 8); 49 C. 596, 597 (construed); 63 C.
578, 580 (cited); 64 C. 5, 8, 27 P. 788, 789 (cited); 64 C. 233, 234
(applied in connection with §19 Pol. C), 242 (applied in con-
struing section including former statute), 30 P. 806, 807, 810;
64 C. 256, 258, 30 P. 813 (applied in construing §1881); 65 C.
301. 303, 4 P. 17 (applied); 73 C. 265, 269, 14 P. 833, 835 (applied);
75 C. 496, 499, 17 P. 446. 448 (applied); 93 C. 421, 424, 29 P.
34, 35 (cited).

As to effect of codes on prior statutes, see Kerr's Cyc. C. C. P.
§ 8 and note.

As to effect of codes on statutes of limitations, see Kerr's
Cyc. C. C. P. § 9 and note.

As to retroactive effect of code, see Kerr's Cyc. C. C. P.
§ 3 and note.

As to statutes construed in force, see Kerr's Cyc. Pol. C. §§ 18,
19 and notes.

As to vested rights, see Kerr's Cyc. C. C. P. §8 and note;
and Kerr's Cyc. Pol. C. § 8 and note.

§ 19. THIS ACT, HOW CITED, ENUMERATED, ETC.

This act, whenever cited, enumerated, referred to, or amended,
may be designated simply as " The Code of Civil Procdure,"
adding, when necessary, the number of the section.
History: Enacted March 11, 1872.

As to amendments to code — Method of making, see Kerr's
C. C. P. § 19 note par. 1, and introductory note to Pt. I.

Same — Effect on unchanged portion. — See Kerr's Cyc. C. C.
P. § 19 note par. 2.

§20. JUDICIAL REMEDIES DEFINED. Judicial reme-
dies are such as are administered by the courts of justice,
or by judicial officers empowered for that purpose by the
constitution and statutes of this state.

History: Enacted March 11, 1872.

71 C. 395, 397 (miscited as §§20, 61 for §2061); 135 C. 12, 14,
66 P. 846 (applied); 3 C. A. 626, 630, 86 P. 904 (cited with §§21,
22, 23 in construing §963); 128 U. S. 53, 89, 32 L. ed. 415, 424,
9 Sup. Ct. Rep, 30 (applied with §§ 21, 22, 23 in construing §§ 372,
373).

14



PRELIMINARY PROVISIONS. §§ 21-23

§21. DIVISION OF JUDICIAL REMEDIES. These reme-
dies are divided into two classes:

1. Actions; and,

2. Special proceedings.

^r IILstory: Enacted Marcli 11, 1S72.

118 C. 660, 661, 663. 50 P. 768 (cited); 135 C. 12, 14, 66 P. 846
(applied); 2 C. A. 726, 728, 84 P. 242 (cited in denying appeal-
ability of habeas corpus); 3 C. A. 626, 630, 86 P. 904 (cited witii
§§20, 22, 23 in construing- §963); 28 F. 223, 224 (construed and
applied with other sections); 128 U. S. 53, 89, 32 L. ed. 415, 424,
9 Sup. Ct. Rep. 30 (applied witli §§ 20, 22, 23 In construing §§ 372,
373).

§22. ACTION DEFINED. An action is an ordinary pro-
ceeding in a court of justice by which one party prosecutes
another for the enforcement or protection of a right, the
redress or prevention of a wrong, or the punishment of a
public offense.

Hi-story: Enacted March 11, 1872.

See Kerr's Cyc. C. C. P. for 28 pars, annotation.

72 C. 335, 339, 13 P. 880, 882 (applied); 73 C. 452, 455, 2 A. S.
82, 15 P. 82, 84 (applied); 88 C. 374, 379, 26 P. 206, 207 (applied);
89 C. 101, 106. 26 P. 639, 640 (applied); 99 C. 167, 170, 37 A. S.
45, 33 P. 864, 865 (cited); 117 C. 382, 387, 49 P. 354 (applied);
118 C. 334, 341, 50 P. 656 (applied); 118 C. 660, 661, 662, 663,
50 P. 768 (applied); 135 C. 12, 14, 66 P. 846 (cited); 138 C. 579,
581. 71 P. 1123. 1136 (cited in construction of §§ 394, 395); 2 C. A.
726. 728, 84 P. 242 (cited with other sections in denying appeal-
ability of habeas corpus); 3 C. A. 626, 630, 86 P. 904 (cited with
§§20, 21, 23 in construing §963); 28 F. 223, 224 (applied with
other sections); 128 U. S. 53, 89, 32 L. ed. 415, 424, 9 Sup. Ct.
Rep. 30 (applied with §§20, 21, 23 in construing §§372. 373).

§23. SPECIAL PROCEEDING DEFINED. Every other
remedy is a special proceeding.

Hi«tor>-: Enacted March 11. 1872.

See Kerr's Cyc. C. C. P. for 10 pars, annotation.

88 C. 374. 379, 26 P. 206, 207 (cited in construing § 1664); 89 C.
101, 106, 26 P. 639, 640 (applied); 92 C. 239, 248, 28 P. 341. 343
(cited in construction of §4191 Pol. C); 117 C. 382. 387. 49 P.
354 (construed); 118 C. 334. 341. 50 P. 656 (cited witli other

15



§§24-26 CODE OP CIVIL, PROCEDURE.

sections): 118 C. 660, 661, 662, 663, 50 P. 768 (applied); 127
C. 560, 561, 60 P. 437 (applied); 135 C. 12, 14, 66 P. 846 (applied);
138 C. 579, 71 P. 1123 (applied without citation); 141 C. 96, 98.
74 P. 696 (applied); 2 C. A. 726, 728, 84 P. 242 (cited with
other sections in denying appealability of habeas corpus); 3 C.
A. 626, 630, 86 P. 904 (cited with §§ 20, 21, 22 in construing
§963); 28 F. 223, 224 (applied with other sections); 128 U. S.
53,' 89, 32 L. ed. 415, 424, 9 Sup. Ct. Rep. 30 (applied with §§ 20,
21, 22 in construing §§ 372, 373).

As to special proceedings — Generally, see Kerr's Cyc. C. C.
P. §§ 52, 76, 1022, 1063 et seq. and notes; 7 W. & P. 6586.

As to special proceedings of a civil nature, see Kerr's Cyc.
C. C. P. §§ 1063 et seq. and notes.

§ 24. DIVISIONS OF ACTIONS. Actions are of two kinds :
- 1. Civil; and,
2. Criminal.

HLstory: Enacted March 11, 1872.

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

2 C. A. 726, 728, 84 P. 242 (cited with other sections in deny-
ing appealability of habeas corpus).

Civil action — Form of discussed in Kerr's Cyc. C. C. P. §307
and note.

Criminal action — Defined and provided for in Kerr's Cyc. C.
C. P. § 31 and Kerr's Cyc. Pen. C. § 683 and note.

§ 25. CIVIL ACTIONS ARISE OUT OF OBLIGATIONS OR
INJURIES. A civil action arises out of:

1. An obligation;

2. An injury.

History: Enacted March 11, 1872.

49 C. 465, 466 (construed); 99 C. 167, 170, 37 A. S. 45, 33 P.
864, 865 (cited); 118 C. 334, 341 (cited with other sections
applied), 50 P. 656; 139 C. 398, 405, 73 P. 174 (applied).

§ 26. OBLIGATION DEFINED. An obligation is a legal
duty, by which one person is bound to do or not to do a
certain thing, and arises from :

1. Contract; or,

2. Operation of law.

Hi.story: Enacted March 11, 1872; amended to correspond
with § 1427 Civil Code, March 24, 1874, Code ^mdts. 1873-4,

16



PRELIMINARY PROVISIONS. §§ 27-30

p. 281; repealed by Code Commission, Act March 8, ]90], act
held unconstitutional, see history, § 5 ante.

99 C. 167, 170, 37 A. S. 45, 33 P. 864, 865 (cited with other
sections); 139 C. 398, 405, 73 P. 174 (applied).

Obligation — As to what constitutes, see Kerr's Cyc. C. C.
§§ 1427, 1428 and notes; 2 Obiter Dig-. 356; 6 W. & P. 4878.

§ 27. DIVISION OF IXJURIES. An injury is of two kinds:

1. To the person; and,

2. To property.

IIi!4tory: Enacted March 11, 1872; repealed by Code Commis-
sion, Act March 8, 1901, act held unconstitutional, see history,
§ 5 ante.

§28. injuries' TO TROPERTY. An injury to property
consists in depriving its owner of the benefit of it, which is
done by taking, withholding, deteriorating, or destroying it.

History: Enacted March 11, 1872; repealed by Code Commis-
sion, Act March 8, 1901, act held unconstitutional, see liistory,
§ 5 ante.

§29. INJURIES TO THE PERSON. Every other injury is
an injury to the person.

History: Enacted March 11, 1872; repealed by Code Commis-
sion, Act iMarch 8, 1901, act held imconstitiitional, see liistory,
§ 5 ante.

§ 30. CIVIL ACTION, BY WHOM PROSECUTED. A civil
action is prosecuted by one party against another for the
enforcement or protection of a right, or the redress or pre-
vention of a wrong.

IlLstory: Enacted March 11, 1872; repealed by Code Commis-
sion, Act March 8, 1901, act held unconstitutional, see history,
§ 5 ante.

See Kerr's Cyc. C. C. P. for 9 pars, annotation.
109 C. 643, 655, 42 P. 428 (held not applicable).
Action— Form of discussed in Kerr's Cyc. C. C. P. S§ 307
et sec|. and notes.

Kerr's C. C. P. — 2 17



§8 31,32 CODE OF CIVIL PROCROURR.

§31. CRIMINAL ACTIONS. The Penal Code defines and
provides for the prosecution of a criminal action.

Hlstors': Enacted March 11, 1872; repealed by Code Commis-
sion, Act March 8, 1901, act held unconstitutional, see history,
§ 5 ante.

Definition of criminal action. — See Pen. C. § 683.

§ 32. CIVIL AND CRIMINAL REMEDIES NOT MERGED.

When the violation of a right admits of both a civil and crimi-
nal remedy, the right to prosecute the one is not merged in
the other.

History: Enacted March 11, 1872.



PART I.

OF COURTS OF JTSTU'E,

Title I. Of Their Organization, Jurisdiction and terms,
§§ 33-153.
11. Judicial Officers, §§ 156-187.

III. Persons Specially Invested with l*owers of a

Judicial Nature, §§ 190-259.

IV. Ministerial Officers of Courts of Justice,

§§ 262-274a.
V. Persons Specially Invested with .Ministerial
Powers Relating to Courts of Justice,
§§ 275-304.



19



Tit. I, Ch. I.J COURTS OF JUSTICE IN GENERAL. §33



TITLE I.

OF THEIR ORGANIZATION, JURISDICTION, AND TERMS.

Chapter I. Courts of Justice in General, §§ 33, 34.

II. Court of Impeachment, §§ 36-39.

III. Supreme Court, §§ 40-57.

IV. Superior Court.s, §§ 65-79.
V. Justices* Courts, §§ 85-115.

VI. Police Courts, § 121.
VII. General Provisions Respecting^ Courts of Justice,
§§ 124-153.



CHAPTER I.

COURTS OF JUSTICE IN GENERAL.

§ 33. The several courts of this state.
§ 34. Courts of record.

§ 33. THE SEVERAL COURTS OF THIS STATE. The fol-
lowing are the courts of justice of this state:

1. The court of Impeachment;

2. The supreme court;

3. The superior courts;

4. The justices' courts;

5. The police courts, and such otlwr inferior courts as the
legislature may establish in any incorporated city or town, or
city and county.

[6. District' courts of appeal are provided for by constitu-
tional amendment of 1904. — Henning's General Laws, p. Ixxx.]

History: Enacted March 11, 1872; amended April 1, 1880, Code
Amdts. 1880 (C. C. P. pt.), p. 21; repealed by Code Commission,
Act March 8, 1901, act held unconstitutional, see history, § 5
ante.

See Kerr's Cj'c. C. C. P. for 13 pars, annotation.
District courts of appeal. — See Hen. G. L., p. l.xxx.

21



§§ 34, 36 CODE OF CIVIL PROCEDURE. [pt. I.

Jurisdiction of courts — Court of impeachment. — See Kerr's
Cyc. C. C. P. §S 36 et seq. and notes.

Justices' courts. — See Kerr's Cyc. C. C. P. §§ 85 et seq. and
notes.

Police courts. — See Kerr's Cyc. C. C. P. § 121 and note.

Superior courts. — See Kerr's Cyc. C. C. P. §§65 et seq. and
notes.

Supreme court.- — See Kerr's Cyc. C. C. P. §§40 et seq. and
notes.

The several courts — The judicial powers of. — See Const.
1879, art. VI, § 1, Hen. G. L., p. Ixix.

§34. COURTS OF RECORD. The courts enumerated in
the first three subdivisions of the last preceding section are
courts of record.

History: Enacted March 11, ISTlI; amended April 1, 1880, Code
Amdts. 1880 (C. C. P. pt.), p. 21; repealed by Code Commission,
Act March 8, 1901, act held unconstitutional, see history, | 5
ante.

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

As to coiirt seals, see Kerr's Cyc. C. C. P. §§ 147 et seq. and
notes.

As to what constitutes a seal, see Kerr's Cyc. C. C. P. §§ 14 and
note.

Courts of record — -What are by the constitiition. — Const.
1879, art. VI, § 12, Hen. G. L.., p. Ixx.



CHAPTER II.

COURTS OF IMPEACHMENT.

§ 36. Members of the court.

§ 37. Jurisdiction.

§ 38. Officers of the court.

§ 39. Trial of impeachments provided for in Penal Code.

§ 36. MEMBERS OF THE COURT. Th3 court of impeach-
ment is the senate; when sitting as such court the senators
shall be upon oath; and at least two thirds of the members
elected shall be laecessary to constitute a quorum.

History: This section was origrinally § 35, repealed by amend-
ment of ISSO (see introductory note to this chapter), and also

22



Tit. T, cli. TT.l OOTTUTS OF TMPEACTIMRNT. §§ 37-19

))y Code Commission (tliey seem to have overlooked tlie fact of
previous repeal), Act March 8, 1901, act held unconstitutional,
see history, § 5 ante. Present section enacted April 1. 1880, Code
Amdts. ISSO (C. C. P. pt.), p. 22.

107 C. 117, lis (erroneously cited for § 86), 40 P. 100 (cor-
rectly cited).'

Impeachment courts — Constitutional provisions for. — See
Const. 1879, art. IV, § 17; art. VI, § 1, Hen. G. K, pp. Ixviii, Ixxi.

§37. JURISDICTION. The court has jurisdiction to try
impeachments, when presented by the assembly, of the gov-
ernor, lieutenant-governor, secretary of state, controller, treas-
urer, attorney-general, suveyor-general, chief justice of the
supreme court, associate justices of the supreme court, and
judges of the superior courts, for any misdemeanor in office.

History: Enacted April 1, 1880, Code Amdts. 1880 (C. C. P. pt.),
p. 22; repealed by Code Commission, Act March 8, 1901, act held
unconstitutional, see history, § 5 ante.

See Kerr's Cyc. C. C. P. for 3 pars, annotation.

As to jurisdiction on impeachment, see Const. 1879, art. IV,
§ 18, Hen. G. L., p. Ixxi.

Who liable to impeachment- — ^Constitutional provisions. — See
Const. 1879, art. IV, § 4, Hen. G. L., p. Ixix.

§38. OFFICERS OF THE COURT. The officers of the
senate are the officers of the court.

History; Enacted as §37 March 11, 1872; renumbered §38 in
amendment April 1, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 22;
repealed by Code Commission, Act March 8, 1901, act held uncon-
stitutional, see history, § 5 ante.

See Kerr's Cyc. Pen. C. §§ 10, 737-753 and notes.

§39. TRIAL OF IMPEACHMENTS PROVIDED FOR IN
PENAL CODE. Proceedings on the trial of impeachments are
provided for in the Penal Code.

History: Enacted March 11, 1872, and numbered §38; number
changed to § 39 by amendment April 1, 1880. Code Amdts. 1880
(,C. C. P. pt.), p. 22; repealed by Code Commission, Act March 8,
1901, act held unconstitutional, see liistory, § 5 ante.

See Kerr's Cyc. Pen. C. § 737 et seq. and notes.

23



§ 40 CODE OP CIVIL PROCEDURE. [pt. I.



CHAPTER III.

SUPREME COURT.

§ 40. Justices, elections, and terms of office.

§ 41. Computation of years of office.

§ 42. Vacancies.

§ 43. Departments.

§ 44. Apportionment of business.

§ 45. Court in bank.

§ 46. Absence or disabllitj- of chief justice.

§ 47. Sessions.

§ 48. Adjournments.

§ 49. Decisions In writing.

§ 50. Jurisdiction of two kinds.

§ 51. Original jurisdiction.

§ 52. Appellate jurisdiction.

§ 53. Powers In appealed cases.

§ 54. Concurrence necessary to transact business.

§ 55. Transfer of books, papers, and actions.

§ 56. Remittiturs in transferred cases.

§ 57. Appeals in probate proceedings and contested election
cases.

§40. JUSTICES, ELECTIONS, AND TERMS OF OFFICE.

The supreme court shall consist of a chief justice, and six
associate justices, who shall be elected by the qualified elec-
tors of the state at large, at the general state elections next
preceding the expiration of the terms of office of their pre-
decessors respectively, and hold their oflices for the term of
twelve years from and after the first Monday after the first
day of January next succeeding their election; provided, that
of the justices elected at the general state election of eighteen
hundred and seventy-nine, the chief justice shall go out of
office at the end of eleven years, and the six associate jus-
tices shall have so classified, or shall so classify themselves,
by lot, that two of them shall go out of office at the end of
three years, two of them at the end of seven years, and two
of them at the end of eleven years from the first Monday
after the first day of January, eighteen hundred and eighty;
and an entry of such classification shall have been, or shall

24



Tit. I, Ch. III.] SUPREME COURT. §§41, '12

be made in the minutes of the court in bank, signed by them,
and a duplicate thereof filed in the office of the secretary of
state.

History: Enacted March 11, 1872; amended April 1, 1880, Code
Amdts. 1880 (C. C. P. pt.). pp. 22-23; repealed by Code Commis-
sion, Act March 8, 1901, act held unconstitutional, see liistory,
§ 5 ante.

See Kerr's Cyc. C. C. P. for 9 pars, annotation.

Constitutional provisions regarding- supreme court. — See
Const. 1879, art. VI, §§ 2, 3, Hen. G. L., p. Ixix.

Eligibility to be elected or appointed to be a justice of the
supreme court is regulated by § 156, post.

Jurisdiction of supreme court — As to, see Kerr's Cyc. C. C.
P. §§ 50-53 and notes.

Supreme court always open for tlie transaction of business. —
See Const. 1879, art. VI, § 2, Hen. G. L., p. Ixxviil. See Kerr's
Cyc. C. C. P. § 134 and note.

Vacancies, absence, or inability to act — As to-, see Kerr's
Cyc. C. C. P. §§ 42, 46 and notes; 8 W. & P. 7259.



§ 41. COMPUTATION OF YEARS OF OFFICE. The years
during which a justice of the supreme court is to hold office
are to be computed respectively from and including the first
Monday after the first day of January of any one year to and
excluding the first Monday after the first day of January of
the next succeeding year.

History: Enacted April 1, 1880, Code Amdts. 1880 (C. C. P. pt.),
p. 23; repealed by Code Commission, Act March 8, 1901, act held
unconstitutional, see history, § 5 ante.

56 C. 95, 101; 83 C. Ill, 17 A. S. 217, 23 P. 1, 7 L. 348; 114 C.
168. 45 P. 1060, 34 L. 46.

Terms and classifications of justices of supreme court are pro-
vided for in Constitution 1879, art. VI, § 3, Hen. G. L., p. Ixxix.

§ 42. VACANCIES. If a vacancy occur in the office of a
justice of the supreme court, the governor shall appoint an
eligible person to hold the office until the election and quali-
fication of a justice to fill the vacancy, which election shall
take place at the next succeeding general election; and the

25



§ 43 CODE OF CIVIL PROCEDURE. [Pt. I.

justice so elected shall hold the office for the remainder of
the unexpired term of his predecessor.

History: Enacted April 1. 1880, Code Amdts. 1880 (C. C. P. pt.).
p. 23; repealed by Code Commission, Act March 8, 1901, act held
unconstitutional, see history, § 5 ante.

See Kerr's Cyc. C. C. P. for 4 pars, annotation.

Absence — Of chief justice, or inability of — As to, see Kerr's
Cyc. C. O. P. § 46 and note.

Pending proceedings not affected thereby. — See Kerr's Cyc.
C. C. P. § 184 and note.

Vacancy — Generally — As to, see Const. 1879, art. VI, §3,
Hen. G. L., p. Ixix: Kerr's Cyc. Pol. C, §§ 995 et seq. and notes.

Vacancy in office of Judge — As to generally, see 29 Const.
Dig. § 30, p. 1594; § 31, p. 1595; 8 W. & P. 7259.

§ 43. DEPARTMENTS. There shall be two departments of
the supreme court, denominated respectively department one
and department two. The chief justice shall assign three of
the associate justices to each department, and such assign-
ment may be changed by him from time to time; provided,
that the associate justices shall be competent to sit in either
department, and may interchange with one another by agree-
ment among themselves, or if no such agreement be made, as
ordered by the chief justice.

The chief justice may sit in either department, and shall
preside when so sitting; but the justices assigned to each
department shall select one of their number as presiding jus-
tice.

Each of the departineuts shall have the power to hear and
determine causes and all questions arising therein, subject
to the provisions in relation to the court in bank.

[Presence and concurrence of at least three justices neces-
sary.] The presence of three justices shall be necessary to
transact any business in either of the departments, except
such as may be done at chambers; but one or more of the
justices may adjourn from time to time with the same effect
as if all were present, and the concurrence of three justices
shall be necessary to pronounce a judgment; provided, that if
three do not concur, the cause may be reheard in the same

26



Tit. T, Ch. TIL] SUPREME COURT. §44

department, or transmitted to the other department, or to the
court in bank.

History: Enacted April 1, 1880, Code Amdts. 1880 (C. C. P. pt. ).
p. 23; repealed by Code Commission, Act Marcli 8. 1901. act liold
unconstitutional, see liistory, § 5 ante.

See Kerr's Cyc. C. C. P. for 12 pars, annotation.

104 C. 133, 135 (erroneously cited for § 43 Insolvent Act 1880),
37 P. 887 (correctly cited).

Adjournment for liolidays by supreme court. — See Kerr's Cyc.
C. C. P. §§ 134, 135 and notes.

Chambers — Powers of judges at, discussed in Kerr's Cyc. C. C.
P. § 165 and note; 2 Obiter Dig. 833.

Constitutional i>rovisions are found in Const. 1879, art. VI, § 2,
TTen. G. I^., p. Ixix.

§ 44. APPORTIONMENT OF BUSINESS. The chief justice
shall apportion the business to the departments, and may, in
his discretion, order any cause pending before the court to
be heard and decided by the court in bank. The order may
be made before or after judgment pronounced by a depart-
ment; but when a cause has been allotted to one of the
departments and a judgment pronounced therein, the order
must be made within thirty days after such judgment, and
concurred in by two associate justices; and if so made, it
shall have the effect to vacate and set aside the judgment.

[Orderiug hearing in bank.] Any four justices may, either
before or after judgment by a department, order a cause to
be heard in bank. If the order be not made within the time
above limited, the judgment shall be final; provided, that no
judgment by a department shall become final until the expi-
ration of the period of thirty days aforesaid, unless approved
by the chief justice in writing, with the concurrence of two
associate justices.

History: Enacted April 1, 1880, Code Amdts. 1880 (C. C. P. pt.).
p. 23; repealed by Code Commission, Act Marcli 8, 1901, act held
unconstitutional, see history, § 5 ante.

Constitutional provisions are found in Const. 1879. art. VT, § 2,
Hen. G. 1^., p. Ixxviii.

Hearing in liank — Rule regarding, 144 C. p. lii, sulid. 1 of
Rule xxviii (old rule 130 C. p. xlviii, Rule No. 30).

27



S§ 4r>, 4G CODE OP CIVTL, PROCEDURE. [pt. I.

§ 45. COURT IN BANK. The chief justice or any four jus-
tices may convene the court in bank at any time, and the
chief justice shall be the presiding justice of the court when
so convened. The presence of four justices shall be necessary
to transact any business, and the concurrence of four justices
present at the argument shall be necessary to pronounce a
judgment in the court in bank; provided, that if four justices
so present do not concur in a judgment, then all the justices
qualified to sit in the cause shall hear the argument, but to
render a judgment a concurrence of four justices shall be
necessary; and every judgment of the court in bank shall be
final, except in cases in which no previous judgment has been
rendered in one of the departments, and in such cases the
judgment of the court in bank shall be final, unless within
thirty days after such judgment an order be made in writing,
signed by five justices, granting a rehearing.

History: Enacted April 1, 1880, Code Amdts. 1880 (C. C. P. pt.),
p. 24; repealed by Code Commission, Act March 8, 1901, act held
unconstitutional, see history, § 5 ante.

See Kerr's Cyc. C. C. P. for 10 pars, annotation.

72 C. 535, 540, 14 P. 180, 359 (applied); 81 C. 408, 460, 466, 470,
472, 475, 477, 480, 21 P. 976, 22 P. 742, 1028, 1030, 1031, 1032,
1033, 1034, 6 L. 594 (construed and applied); 148 C. 172, 177
(applied), 82 P. 772.

§ 46. ABSENCE OR DISABILITY OF CHIEF JUSTICE. In

case of the absence of the chief justice from the place at



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 4 of 168)