The Civil Practice Act of the State of California

to writing and subscribed by the party. A verbal acknowledgment is not sufficient. Montgomery v. Tutt, 11 Cal. 307.

10. The statute does not require an admission of service to designate the place where the service was made. The object of such designation, when required, is to determine the period within which the answer must be filed, or when default may be taken. Alderson v. Bell and Wife, 9 Cal. 315.

11. Where defendant's attorneys accepted service of the summons, but attached no date thereto, the date of the return by the Sheriff was held to be the true date of the service. When the place where the writ is served is not stated, the Court should assume that it was served within the jurisdiction of the officer to whom it is directed. Crane v. Brannan, 3 Cal. 194.

§ 34. Certificate or affidavit of service, requisites of.

In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of the service.

N. Y. Code, § 138.

1. The only object of the designation of the place where process is served, is to determine the period within which the answer must be filed, or when default may be taken. Whitwell v. Barbier, 7 Cal. 62.

2. Where the evidence of the place of service is insufficient to authorize a judg ment, advantage of it should be taken, either by appeal or on motion to vacate the judgment. Pico v. Sunol, 6 Cal. 294.

§ 35. Jurisdiction, when Court shall have acquired.

of com

From the time of the service of the summons and copy plaint in a civil action, the Court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.

N. Y. Code, § 139. As to what constitutes an appearance, see post, § 523.

1. In order to give a Court jurisdiction of the subject matter, so as to enable it to issue orders or process, there must be a suit instituted in the Court. Ex parte Cohen, 6 Cal. 318.

2. The first point decided by any Court is, that the Court has jurisdiction, although it may not be in terms. Clary v. Hoagland, 6 Cal. 685.

3. The object of a summons is to bring the party into Court. If that object be attained by the appearance and pleadings of the party, he cannot complain. Andrews v. Mokelumne Hill Co., 7 Cal. 330.

4. Where a defendant was served with process, but was not given the time allowed by statute to appear and answer, it would be a sufficient reason for the Court to quash the writ on motion by an amicus curiæ, or for extension of the time on defendant's motion, or a good objection on writ of error, arrest of judgment or motion for a new trial; but it cannot be said that the Court had no jurisdiction of the person, so as to render its judgment a nullity. Whitwell v. Barbier, 7 Cal. 62. 5. In actions in personam in Courts other than Admiralty Courts, no man can be deprived of his property without having been first personally cited to appear and make his defense, unless by virtue of some positive statutory enactment. Loring v. Illsley, 1 Cal. 29.

6. Service of summons upon a party by a wrong name does not give the Court jurisdiction over his person. His appearance cannot be compelled, and by nonappearance he does not waive any of his rights. Farnham v. Hildreth, 32 Barb. 277; 12 Abbott's Pr. R. 582.

TITLE IV.

OF THE PLEADINGS IN CIVIL ACTIONS.

SEC. 36. Form of pleadings.

37. Sufficiency of pleadings, how determined.

38. Pleadings on the part of plaintiff and defendant.
39. Complaint, what to contain.

40. When defendant may demur.

41. Demurrer must specify grounds of objection.

42. Demurrer and answer.

43. Amended complaint, how filed and served.

44. Objection not appearing on complaint.

45. Objection, when deemed waived.

46. Answer, what to contain.

47. Counter claim.

48. Cross demands.

49. Several defenses.

50. Demurrer to answer and sham and irrelevant defenses. 51. Pleadings to be verified.

52. Pleadings, when not to be verified.

53. Copy of instrument, when deemed admitted as genuine.
54. When deemed not admitted.

55. Pleadings, how and by whom verified.
56. Items of account. Bill of particulars.

57. Irrelevant or redundant matter.
58. In real actions, how to describe property.
59. Judgments, how to be pleaded.

60. Conditions precedent, how to be pleaded.
61. Private statutes, how to be pleaded.

62. Libel and slander, how stated in the complaint.

63. Answer in such cases.

64. What causes of action may be joined.

65. Allegation not denied, when to be deemed true.

66. What is a material allegation.

67. Amendments of course, and effect of demurrers.

68. Who may enlarge time to plead, correct mistakes, amend and relieve from judgment in certain cases.

69. Fictitious name.

70. Pleadings, how constructed.

71. No error or defect to be regarded, unless it affects the substantial rights.

§ 36. Form of pleadings.

The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court.

For intervention, see § 659, etc.

§ 37. Sufficiency of pleadings, how determined.

All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act.

N. Y. Code, § 140.

Section 88. The pleadings on the part of the plaintifintiff and defendant.

shall be the complaint or demurrer to the defendant's
answer; the pleadings on the part of the defendant to
the original complaint or cross complaint of a co-de-

fendant shall be the demurrer or answer. When a gs on the part of the plaintiff

defendant is entitled to relief as against the plaintiff

alone, or against the plaintiff and a co-defendant, be replication to the defendant's

may make a separate statement in his answer of the

necessary facts, with a prayer for the relief sought, in

stead of bringing a distinct cross action. All pleadings

subsequent to the original complaint shall be filed with

the Clerk, and a copy thereof served on the adverse
party or his attorney, if the adverse party or his at-
torney live within the county where the action is pend-

ing; provided, that when the answer contains a cross

complaint the parties, plaintiff or defendant, or his or

part of defendant shall be a

arrer to the replication, or an rrer or answer of the defend

of the plaintiff, shall be filed

their attorney thereto, shall be served with a copy rved on the adverse party, or

thereof, and shall have the same time thereafter to
plead thereto that is allowed for pleading to the orig-
inal complaint after service of the summons.

§ 39. Complaint, what to contain.

The complaint shall contain:

1st. The title of the action, specifying the name of the court and the name of the county in which the action is brought, and the name of the parties to the action, plaintiff and defendant.

2d. A statement of the facts constituting the cause of action, in ordinary and concise language.

3d. A demand of the relief which plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated.

N. Y. Code, § 142. As to the subject of parties, see ante, §§ 1-17.

1. Statement of the facts constituting a cause of action.

GENERAL RULES.

2. The statute requiring the complaint to contain a statement of the facts constituting a cause of action, in ordinary and concise language, is only declaratory of the common law. Godwin v. Stebbins, 2 Cal. 103.

3. The Practice Act has abolished all distinctions in the form of actions, and requires only a simple statement of the facts constituting the cause of action or defense. Piercy v. Sabin, 10 Cal. 27.

4. It governs all cases of pleading, legal and equitable, by the same rules-evidence included. Goodwin v. Hammond, 13 Cal. 169; Biddle v. Baker, Id. 382; Payne v. Treadwell, 16 Id. 243.

5. It makes no distinction between the rules of pleading applicable to natural persons and those applicable to artificial persons. San Francisco Gas Co. v. City of San Francisco, 9 Cal. 467.

6. The word " person," in its legal signification, is a generic term, and was intended to include artificial as well as natural. Douglas v. Pacific M. S. S. Co., 4 Cal. 304.

.. my suen racts need be alleged as are required to be proved, except to neg ative a possible performance of the obligation, which is the basis of the action, or to negative an inference from an act which is, in itself, indifferent. Payne v. Treadwell, 16 Cal. 220.

17. Every fact which, if controverted, plaintiff must prove to maintain his action must be stated in the complaint. Jerome v. Stebbins, 14 Cal. 457.

18. It was the intention of the Code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved by them respectively, but to narrow the proofs on the trial. Piercy v. Sabin, 10 Cal 22.

19. He must allege nothing affirmatively which he is not required to prove. Green v. Palmer, 15 Cal. 413. It must be recollected that every fact essential to the claim of defense should be stated. If this part of the rule be violated, the adverse party may demur. Id.

20. Nothing should be stated which is not essential to the claim or defense, or in other words, that none but issuable facts should be stated. If this part of the rule be isolated, the adverse party may move to strike out the unessential parts. Id.

21. Material averment, test of.-An unessential, or what is the same thing, an immaterial allegation, one which can be stricken from the pleading without leaving it insufficient; and, of course, need not be proved or disproved. Id.; Whitwell v. Thomas, 9 Cal. 499.

22. The following question will determine, in every case, whether an allegation

69. Fictitious name.

70. Pleadings, how constructed.

71. No error or defect to be regarded, unless it affects the substantial rights.

§ 36. Form of pleadings.

The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court.

For intervention, see § 659, etc.

$37. Sufficiency of pleadings, how determined.

Amendment to Sec. 38.-Passed April 25th, 1863.
[Takes effect sixty days after passage.]

§ 38. The only pleadings on the part of the plaintiff shall be the complaint or demurrer to defendant's answer, and the only pleadings on the part of the defendant shall be the demurrer or the answer. The demurrer or answer of the defendant and the demurrer of the plaintiff shall be filed with the Clerk, and a copy thereof served on the adverse party or his Attorney; provided. the adverse party or his Attorney live within the county where the action is pending.

inal complaint after service or tue summe