23. Complaint, how indorsed; when summons may issue, how signed and issued.

24. Summons, requisites of.

25. Summons, time to answer.

26. Summons, what notice to be inserted therein.

27. Lis pendens, filing and effect of.

28. Summons, by whom served.

29. Summons, how served.

30. Service of summons by publication, when defendant cannot be found, &c.

31. Order of publication, what to contain.

32. Action against two or more defendants, how plaintiff may proceed.

33. Proof of service, how made.

34. Certificate or affidavit of service, what to state.
35. Jurisdiction, when Court shall have acquired.

* STATUTES OF 1854, 194; WOOD'S DIGEST, 249, ART. 1377. An Act prescribing the manner of commencing and maintaining suits by or against counties. Passed May 11th, 1854.

1. Suits against a county may be commenced in any Court of that county, or in a District Court of the Judicial Discrict in which such county is situated, in the same manner as suits against private persons; provided, that suits between counties shall be commenced in a Court of competent jurisdiction, in any county not a party to such action.

2. In counties where there is a Board of Supervisors, liaving an acting Chairman or President of such Board, the original process and papers shall be served on such Chairman or President, in the same manner as upon private persons; when there is no such Chairman or President, they shall in like manner be served on the County Judge of the county.

3. Immediately on the service of such process, it shall be the duty of the officer so served to deliver such process, and all papers accompanying the same, to the District Attorney for such county, whose duty it shall be to defend such cause or proceeding on the part of such county until final judgment or compromise of such suit or proceeding.

4. Suits brought for or against a county shall be by or in the name of such county.

STATUTES OF 1855, 56, § 24; WOOD'S DIGEST, 696, ART. 3333.

24. No person shall sue a county in any case, or for any demand, unless he or she shall first present his or her claim or demand to the Board of Supervisors for allowance; and if they fail or refuse to allow the same, or some part thereof, the party feeling aggrieved may sue the county; and if the party suing recover in the action more than said Board allowed, or offered to allow, said Board shall allow the amount of the said judgment and costs as a just claim against the county; but if the party suing shall not recover more than the Board shall have offered to allow him or her, then costs shall be recovered against him or her by the county. All claims for services, and items of account of a similar nature, presented by any one person to the Board of Supervisors, at any session of the Board, shall be included in one account, and so considered by the Board, unless by consent of the Board.

a. These statutes sustained. Price v. Sacramento County, 6 Cal. 255; Gilman v. Contra Costa County, Id. 676; 8 Id. 52; County of Yuba v. Adams, 7 Id. 35; Mc Cann v. Sierra County, Id. 121; Placer County v. Astin, 8 Id. 303.

§ 22. Actions, how commenced.

[1855.] Civil actions in the District Courts and the County Courts shall be commenced by the filing of a complaint with the Clerk of the Court in which the action is brought, and the issuing of a summons thereon; provided, that, after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer shall be deemed a waiver of summons.

N. Y. Code, § 127.

1. An appearance by attorney, at common law, and by the express letter of our statute, amounts to an acknowledgment or waiver of service. Suydam v. Pitcher, 4 Cal. 280.

2. Where a complaint was filed on the thirtieth day of October, 1856, and no summons was issued thereon, and an amended complaint was filed on the twentysixth of January, 1857, and summons issued thereon: Held, that the suit was not commenced until the issuing of the summons. Green v. Jackson, 10 Cal. 374.

3. The provision in the General Limitation Act of 1850, that the filing of the complaint shall be deemed a commencement of suit, applies to that act only, and not to the Mechanics' Lien Act. Under this latter act, to commence a suit within six months from the expiration of a credit given, a complaint must be filed and a summons issued. Flandreau v. White, 18 Cal. 639.

§ 23. Complaint, how indorsed; when summons may issue, how signed and issued.

[1860.] The Clerk shall indorse on the complaint the day, month and year the same is filed; and at any time within one year after the filing of the same the plaintiff may have a summons issued. The summons shall be signed by the Clerk, and directed to the defendant, and be issued under the seal of the Court.

1. If, as contended in this case, a judgment by default be void, because of the absence of the seal of the District Court to the summons issued in the action in which the judgment was entered, or because of a defect in the certificate of the Sheriff of the service of the summons and copy of complaint, or because of irregularities of the Clerk in entering the judgment, an injunction to restrain the enforcement thereof does not lie. The remedy is by application to the District Court to quash the execution. (See authorities cited by appellant.) Logan v. Hillegass, 16 Cal. 200.

§ 24. Summons, requisites of.

[1854, 1859.] The summons shall state the parties to the action, the Court in which it is brought, the county in which the complaint is filed, the cause and general nature of the action, and require the defendant to appear and answer the complaint within the time mentioned in the next section, after the service of the summons, exclusive of the day of service, or that judgment by default will

be taken against him, according to the prayer of the complaint, briefly stating the sum of money or other relief demanded in the complaint; and the Clerk shall also indorse on the summons the names of the plaintiff's attorneys.

1. The only object of a summons is to bring a party into Court, and if that object be obtained by the appearance and pleading of a party, there can be no injury to him. Smith v. Curtis, 7 Cal. 587.

2. If the summons be radically defective, it will not support a judgment by default. People v. Woodleif, 2 Cal. 241.

3. In this case, the summons was returnable in thirty instead of forty days, and did not state that judgment by default would be taken unless the defendant appeared and answered, nor specify any amount for which judgment would be taken. Id.

4. In actions for fraud, the summons must apprise the defendant that on failure to answer, judgment will be taken against him for the fraud. A mere notice in the summons that a money judgment will be taken, will not support a judgment for fraud. Porter v. Hermann, 8 Cal. 619.

5. The Court may allow the summons to be amended by inserting a notice to the defendant of the nature of the demand, and that unless he appear and answer within the time therein specified, judgment by default will be taken against him. Pollock v. Hunt, 2 Cal. 194.

§ 25. Summons, time to answer.

The time in which the summons shall require the defendant to answer the complaint, shall be as follows:

1st. If the defendant is served within the county in which the action is brought, ten days.

2d. If the defendant is served out of the county, but in the district in which the action is brought, twenty days.

3d. In all other cases, forty days.

1. An answer filed without leave of Court after the time for answering has expired, but before default has been entered, is not a nullity, but at most an irreg ularity. Bowers v. Dickerson, 18 Cal. 420.

2. The Court in its discretion may strike out an answer so filed, or retain it, or permit another to be filed; but plaintiff cannot, as of right, have such answer struck out. For these purposes, defendant is not in default until his default has been actually entered in accordance with the statute. Id.

3. A judgment by default before the expiration of the full time will be reversed on appeal. Burt v. Scranton, 1 Cal. 416.

4. Courts will take judicial notice of the territorial extent of the jurisdiction and sovereignty exercised de facto by their own Government, and of the local divisions of the country into States, counties, cities, towns, &c. People v. Smith, 1 Cal. 9; see note to § 24.

$ 26. Summons, what notice to be inserted therein.

There shall also be inserted in the summons a notice, in substance as follows:

1st. In an action arising on contract for the recovery only of money or damages, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint.

2d. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the Court for the relief demanded therein.

See ante, § 24; N. Y. Code, § 129.

1. Where judgment by default is entered, in an action against a party for fraudulently converting money of the plaintiff, the summons must have apprised the defendant that, on failure to answer, judgment would be taken against him for the fraud. A mere notice in the summons that a money judgment would be taken, will not support a judgment for fraud. Porter v. Hermann, 8 Cal. 619.

§ 27. Lis pendens, filing and effect of.

[1862.] In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the Recorder of the county in which the property is situated a notice of the pendency of the action, containing the names of the parties to, and the object of, the action, and a description of the property in that county affected thereby; and the defendants may also, in such notice, state the nature and extent of the relief claimed in the answer. From the time of filing, only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.

N. Y. Code, § 132.

1. A bona fide purchaser of land without notice of proceedings pending for its condemnation, at the time of purchase, no notice of lis pendens being filed, is not affected by the proceedings. Bensley v. Mountain Lake Water Company, 13 Cal.

306.

2. Under our statute, the mere pendency of a suit does not charge the purchaser of the subject matter of the suit as a purchaser pendente lite at common law. A notice of lis pendens must be filed or appear of record. Head v. Fordyce, 17

Cal. 149.

3. Where notice of lis pendens was not filed, plaintiff cannot successfully set up that notice would have done no good to the purchaser, because he could make no defense, or no better defense than the vendor. The object of the notice is to give the opportunity of defense, and also to notify third persons of the litigation. Richardson v. White, 18 Cal. 102.

4. Our statute does not give any new rights to the plaintiff, but limits rights which he had before. It simply adds to the common law rule a single term, to wit to require for constructive notice, not only a suit, but filing notice for it; and there is no distinction, under the statute, between different kinds of interest in or title to real estate. Id.

Query: Whether actual notice of lis pendens would be equivalent to notice filed with the Recorder. Id.

5. Our statute (Prac. Act, sec. 27) changes the common law rule upon this subject. Id.

6. A purchaser of real property, pending suit affecting the title to it, is not bound by the judgment, unless notice of lis pendens be filed with the County Recorder before the purchase. Id.

7. The only way to charge a purchaser of property, pending a suit, with con

structive notice of the suit, is by filing a notice of lis pendens according to the statute. Ault v. Gassaway, 18 Cal. 205.

8. The effect of lis pendens is to make a subsequent purchaser from the party a mere volunteer, affected by the judgment rendered, or which may be rendered in the suit in the pendency in which notice is given. Gregory v. Haynes, 13 Cal. 594; Curtis v. Sutter, 15 Cal. 263.

9. A lis pendens may be filed in an equity suit with like effect as in a suit at law. Sparks v. Hess, 15 Cal. 193.

§ 28. Summons, by whom served.

[1854, 1855, 1859, 1860.] The summons shall be served by the Sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a Judge of the Court in which the action is brought, or by any white male citizen of the United States, over twenty-one years of age, who is competent to be a witness on the trial of the action, except as hereinafter provided; a copy of the complaint, certified by the Clerk, shall be served with the summons. When the summons is served by the Sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the Clerk from which the summons issued. When the summons is served by any other person as before provided, it shall be returned to the office of the Clerk from which it issued, with the affidavit of such person of its service, and of the service of a copy of the complaint. If there be more than one defendant in the action, and such defendants reside within the county, a copy of the complaint need be served on only one of the defendants.

1. The affidavit of service required by this section must show that the person serving it was a white male citizen, over twenty-one years of age, competent to testify in the cause, and that a certified copy of the complaint accompanied the summons. McMillan and Wife v. Reynolds, 11 Cal. 378.

2. Courts will take judicial notice of the signature of their officers, as such, but not of parties to a cause. Alderson v. Bell, 9 Cal. 321.

3. Courts should presume that the Sheriff served all process within his jurisdiction, where no place of service is stated. Crane v. Brannan, 3 Cal. 195.

4. His return is not traversable, nor can it be attacked collaterally, even if he has been guilty of fraud or collusion. Eguy v. Buchanan, 5 Cal. 56.

5. All returns must be made by the deputy in the name and by the authority of the Sheriff. Joyce v. Joyce, 5 Cal. 449.

6. Where he states that he served defendant with a certified copy of the complaint, it will be presumed that the copy was certified by the Clerk and not by some one else. Curtis v. Herrick, 14 Cal. 119.

7. A mistake in the date of the return may be corrected at any time Scannell, 11 Cal. 248.

Ritter v.

8. The Sheriff has no right to amend his return so as to affect vested rights. Newhall v. Provost, 6 Cal. 87; Webster v. Haworth, 8 Cal. 26.

"

9. The word " appurtenances insufficient to comprehend within its meaning any personal property as the subject of a levy. Monroe v. Thomas, 5 Cal. 471.