Obrázky stránek



CHAPTER I.— Of the parties, and the time and place of commencing

actions in Justices' Courts.

Sec. 533. Certain of the foregoing provisions shall be applicable

to Justices' Courts. 534. Parties may appear in person or by attorney. 535. Venue of actions in Justices' Courts. 536. Judgment by confession, venue of. 537. Actions in which parties voluntarily appear, venue of.

$ 533. Certain of the foregoing provisions shall be applicable to Justices' Courts.

[1860.] The provisions of title one of this Act, as to parties to actions, shall be applicable to actions of which a Justice's Court has jurisdiction; also, the provisions of this Act from section three hundred and seventeen to section three hundred and thirty-two, both sections inclusive, are hereby made applicable to Justices' Courts, the word “Justice” being substituted for the word “ Clerk," and the word “ Constable” for the word “Sheriff.”

$ 534. Parties may appear in person or by attorney.

Parties in Justices' Courts may prosecute or defend in person, or by attorney; and any person, on the request of a party, may

, act as his attorney, except that the Constable by whom the summons or jury process was served, shall not appear or act on the trial in behalf of either party.

$ 535. Venue of actions in Justices' Courts. u [1853.] No


shall be held to answer to any summons qesued against him from a Justice's Court, in a civil action, in any township or city other than the one in which he shall reside, except is the cases following:

1st. When there shall be no Justice's Court for the township or

Hy in which the defendant may reside, or no Justice competent to act on the case;


[ocr errors]

2d. When two or more persons shall be jointly, or jointly and severally, bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships or different cities of the same county, or in different counties, the plaintiff may prosecute his action in a Justice's Court of the township or city in which any of the debtors or other persons liable may reside;

3d. In cases of injury to the person, or to real or personal property, the plaintiff may prosecute his action in the township or city where the injury was committed ;

4th. When personal property unjustly taken or detained is claimed, or damages therefor are claimed, the plaintiff may bring his action in any township or city in which the property may lue found, or in which the property was taken;

5th. When the defendant is a nonresident of the county, he may be sued in any township or city wherein he may be found;

6th. Where a person has contracted to perform any obligation at a particular place, and resides in another township or city, he may be sued in the township or city in which such obligation is to be performed, or in which he resides;

7th. When the foreclosure of a mortgage or the enforcement of lien upon personal property is sought by the action, the plaintiff may sue in the township or city where the property is situated ;

8th. Any person or persons residing in the City of San Francisco, may be held to answer to any summons issued against him or them from the Court of a Justice for any township within the corporate limits of the City of San Francisco, in any action or proceeding whereof Justices of the Peace of the City or County of San Francisco have or may have jurisdiction by law; provided, nothing herein shall be construed to allow any Justice of said city or county to hold a Court in any other township than the one for which he shall have been elected.

1. Where the record shows that suit was brought in township No. 4, Sierra County, that the summons was served, by the Constable of that township, in township No. 3, and it nowhere appears either that the defendant was a resident of township No. 4, or a nonresident of the county, or that the suit was within any of the other exceptions of the statute. (Wood's Dig. 232, 233.) The judyment rendered is void, and not admissible as evidence of title upon a sale made thereunder. Lowe v. Alexander, 15 Cal. 296.


$ 536. Judgment by confession, venue of.

Judgment upon confession may be entered up in any Justice's Court in the State, specified in the confession.

1. Judgment, by consent or confession, for over two hundred dollars, in a Justice's Court, is void. Consent of parties cannot give jurisdiction which the Constitution denies. Feillett v. Engles, 8 Cal. 76.

Benz 537. Justices' Courts shall have jurisdiction of voluntarily appear, venue of. an acaion, and of the persons of the parties thereto, apon the voluntary appearance of the parties without augns, and without regard to their residence or the isdiction of an action upon the lace where the cause of action arose or the subject watter of the action may exist. The plaintif may ties without summons, without commence an action by summons, either in the town. swr or city where the coutract was, by its terms, to be place where the cause of action pelormed, or in which the defendant resides, as be inny 'elect. letion 2 of an Actrentitled "An Act to regulate ap

action may exist. cals in this State,” apgroved May 21, 1861, il hereby

"ealed as to all proceedings which may be had after huls Act takes effect,

CHAPTER II.-Summons, arrest, attachment and claim of personal


Sec. 538. Commencement of actions in Justices' Courts.

539. Appointment of guardians.
540. Summons, formal and substantial facts of.
541. Time within which summons shall be returned.
542. Service of summons.
543. Service by publication.
544. Order of arrest, and arrest of defendant.
545. Affidavit and undertaking for order of arrest.
546. A defendant arrested shall be taken before the Justice

547. The officer shall give notice to plaintiff of the arrest.
548. The officer shall detain defendant until duly dis-

charged. 549. Defendant may demand trial immediately. 550. Adjournment on motion of a defendant shall be

granted on filing undertaking. 551. Attachment against the property of defendant may

be made in certain cases. 552. Writ of attachment shall issue upon affidavit. 553. Undertaking on attachment shall be required. 554. Writ of attachment, substance of. The officer may

take an undertaking instead of levying.
555. Certain preceding provisions shall apply to attach-

ments in Justices' Courts.
556. Plaintiff may replevy personal property.

557. Affidavit in replevin.
558. The Justice shall order the officer to replevy the prope

erty upon receiving an undertaking.
559. Undertaking in replevin. The officer shall serve the

affidavit, order and undertaking on defenılant. 560. Defendant may except to the sureties.

The officer shall be responsible until the sureties justify. 561. Defendant may, within two days, require a return of

the property. 562. Defendant's sureties shall justify. Officer to be re

sponsible until such justification. 563. If the property be concealed, duty of the officer. 564. The officer shall deliver the property to the party

entitled thereto. 565. Claim of the property by a third party, proceeding

566. The officer shall return order and affidavit within fire

567. Qualification of sureties in this chapter.
568. Manner of justification of sureties.
569. Examination to be annexed to the undertaking.

§ 538. Commencement of actions in Justices' Courts.

Actions in Justices' Courts shall be commenced by filing a copy of the account, note, bill, bond, or instrument upon which the action is brought, or a concise statement in writing of the cause of action, and the issuance of a summons thereon, or by the voluntary appearance and pleadings of the parties without summons. In the latter case, the action shall be deemed commenced at the time of appear


$ 539. Appointment of guardians.

When a guardian is necessary, he shall be appointed by the Justice, as follows:

1st. If the infant be plaintiff, the appointment shall be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years or upwards; if under that age. upon the application of some relative or friend. The consent in writing of the guardian to be appointed, and to be responsible for costs, if he fail in the action, shall be first filed with the Justice;

2d. If the infant be defendant, the guardian shall be appointed at the time the summons is returned, or before the pleadings. It shall be the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent in writing to be appointed. Otherwise, the Justice may appoint any suitable person who gives such consent.

$ 540. Summons, formal and substantial facts of.

The summons shall be adressed to the defendant by name, or if his name be unknown, by a fictitious name; and shall summon him to appear before the Justice at his office, naming its township or city, and at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described, in general terms, sufficient to apprize the defendant of the nature of the claim against him; and in an action for money or damages, shall state the amount for which the plaintiff will take judgment, if the defendant fail to appear and answer. It shall be subscribed by the Justice before whom it is returnable.


$ 541. Time within which summons shall be returned.

[1854.] The time mentioned in the summons for the appearance of the defendant and the time of service shall be as follows:

1st. When the summons is accompanied with an order to arrest the defendant, it shall be returnable immediately ;

2d. When the defendant is not a resident of the township or city, or when the plaintiff is not a resident, it shall be returnable not more than two days from its date, and shall be served at least one day before the time for appearance ;

3d. In all other cases, it shall be returnable in not less than two, or more than ten days from its date, and shall be served at least two days before the time for appearance.

1. A Justice of the Peace cannot make a summons returnable in eleven days after service. Deidesheimer v. Brown, 8 Cal. 339.

$ 542. Service of summons.

The summons shall be served by the Sheriff, or a Constable of the county, as follows:

« PředchozíPokračovat »