Obrázky stránek

the same jurisdiction as if it were originally commenced therein. Provided, that when the pleadings or transcript are certified to the District Court upon the answer of the defendant, he shall file an undertaking with two or more sufficient sureties, to be approved by the Justice, to the effect that they will pay all costs of the action, if it be decided against him by the District Court.

1. Where in a suit in a Justice's Court for damages to real property, the answer put in issue the ownership of the property, and the defendant moved to transfer the case to the District Court for trial, which motion was refused; and after trial before the Justice, judgment was rendered for plaintiff, and the defendant appealed to the County Court, where the judgment was set aside, and an order made transferring the case to the District Court, where, after trial, plaintiff again bad judg. ment: Held, that the County Court bad authority, under seetions five hundred and eighty-one and three hundred and sixty-seven of the Practice Act, to transfer the case to the District Court; that the effect of the appeal to the County Court was to vest it with authority to make all orders necessary for the determination of the case; and as the case was to be tried de novo, and the County Court was incompetent, under the statute, to try it, the transfer to the District Court was necessary. Cullen v. Langridge, 17 Cal. 67.

§ 582. Change of venue in certain cases. Adjournment on demand of a jury.

(1853.] If at any time before the trial it appear, to the satisfaction of the Justice before whom the action is brought, by affidavit of either party, that such Justice is a material witness for either party, or if either party make affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before such Justice, by reason of the interest, prejudice or bias of the Justice, the action shall be transferred to some other Justice of the same or neighboring township; and in case a jury be demanded, and affidavit of either party is made, that he cannot have a fair and impartial trial, on account of the bias or prejudice of the citizens of the township against him, the action shall be transferred to some other Justice of the Peace in the county. The Justice to whom an action may be transferred by the provisions of this section, shall have and exercise the same jurisdiction over the action as if it had been originally commenced before him. The Justice ordering the transfer of the action to another Justice, shall immediately transmit to the latter, on payment of costs, all the papers in the action, together with a certified transcript from his docket, of the proceedings therein.

Upon the return day of the summons, if a jury be required, or if the Justice be actually engaged in other official business, he may adjourn the trial without the consent of either party, as follows:

1st. When a party who is not a resident of the county is in attendance, the adjournment not to exceed twenty-four hours; when the defendant in attendance is under arrest, the adjournment not to exceed three hours;

2d. In other cases, not to exceed five days.

1. Where a Justice is interested in the event of a suit, the statate reqaires that he should transfer the case before another Justice Larue v. Gaskins, 5 Cal. 307.

2. The affidavit must show that the Justice is a necessary, as well as a material witness, and the Justice has no right to judge of its sufficiency. Board of Commissioners v. Dougherty, 16 How. Pr. 46.

$ 583. Adjournment not to exceed ten days for want of material testimony.

[1854.] The trial may be adjourned by consent, or upon application of either party, without the consent of the other, for a period not exceeding ten days, (except as provided in the next section) as follows:

1st. The party asking the adjournment shall, if required by his adversary, prove by his own oath, or otherwise, that he cannot, for want of material testimony, which he expects to procure, safely proceed to trial, and shall show in what respect the testimony expected is material, and that he has used due diligence to procure it, and has been unable to do so;

2d. The party asking the adjournment shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, be then taken by deposition before the Justice, which shall accordingly be done, and the testi

may be read on the trial, with the same effect, and subject to the same objections as if the witness were produced. But such objections shall be made at the time of taking the deposition ;

3d. The Court may also require the moving party to state upon affidavit the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed.

mony so taken

$ 584. Adjournment not to exceed four months, for same cause.

[1854.] An adjournment may be had, either at the time of joining issue, or at any subsequent time to which the case may stand adjourned, on application of either party, for a period longer than ten days, but not to exceed four months, from the time of the return of the summons, upon proof by the oath of the party, or otherwise, to the satisfaction of the Justice, that such party cannot be ready for trial before the time to which he desires an adjournment, for want of material evidence, particularly describing it, and that the delay has not been made necessary by any act or negligence on his part since the action was commenced; that he has used due diligence to procure the evidence, and has been unable to do so, and that he expects to procure the evidence at the time stated by him: provided, that if the adverse party admit that such evidence would be given, and consent that it may be considered as given on the trial, or offered or overruled as improper, the adjournment shall not be had.

$ 585. No continuance for more than ten days shall be granted, unless upon filing undertaking.

No adjournment shall be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, with sureties, to be approved by the Justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying

$ 586. Failure of either party to appear, effects of.

If the plaintiff fail to appear at the return day of the summons, the action shall be dismissed. If the defendant fail to appear at the return day of the summons, or if either party fail to attend at a day to which the trial has been adjourned, or fail to make the necessary pleading or proof on his part, the case may, nevertheless, proceed at the request of the adverse party, and judgment shall be given in conformity with the pleadings and proofs.

$ 587. Trial by jury. Summoning jurors. A trial by jury shall be demanded at the time of joining issue,



and shall be deemed waived if neither party then demand it. When demanded, the trial of the case shall be adjourned until a time and place fixed for the return of the jury. If neither party desire an adjournment, the time and place shall be determined by the Justice, and shall be on the same day, or within the next two days. The jury shall be summoned upon an order of the Justice, from the citizens of the city or township, and not from the bystanders.

1. Where a party demands a jury trial in a Justice's Court, and neglects to appear on the adjourned day, the Justice may proceed and hear the cause witbou: a jury. Kilpatrick v. Carr, 3 Abbott, 117.

$ 588. Empanneling the jury. Number necessary to compose a jury.

At the time appointed for the trial, the Justice shall proceed to call, from the jurors summoned, the names of the persons to constitute the jury for the trial of the issue. The jury, by consent of the parties, may consist of any number not more than twelve nor less than three.

$ 589. If a sufficient number of jurors do not attend, others shall be summoned.

If a sufficient number of competent and indifferent jurors do not attend, the Justice shall direct others to be summoned from the vicinity, and not from the bystanders, sufficient to complete the jury.

$ 590. Challenges of jurors.

Either party may challenge the jurors. The challenges shall be either peremptory or for cause. Each party shall be entitled to three peremptory challenges. Either party may challenge for cause, on any grounds set forth in section one hundred and sixtytwo. Challenges for cause shall be tried by the Justice in a summary manner, who may examine the juror challanged, and wit


CHAPTER IV.-Judgment and execution.
Sec. 591. Judgment of dismissal entered in certain cases with-

out prejudice.
592. Judgment for plaintiff by default.

593. Upon issue joined, the Justice shall try the cause and

render judgment. 594. Entry of judgment, time and manner of. 595. If the sum found due exceeds the jurisdiction of the

Justice, the excess may be remitted. 596. Offer to compromise before trial. 597. Judgment when the defendant is subject to arrest. 598. Costs shall be added to the verdict. 599. Execution issued by the Justice, except when it is to

run out of the county. Judgment liens, how cre

ated. 600. Execution may issue at any time within five years. 601. Execution, contents of. 602. Duty of officer receiving execution. Supplementary


§ 591. Judgment of dismissal entered in certain cases without prejudice.

Judgment that the action be dismissed without prejudice to a new action, may be entered with costs in the following cases:

1st. When the plaintiff voluntarily dismisses the action before it is finally submitted;

2d. When he fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter;

3d. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or township, or city; but if the objection be taken and overruled, it shall be cause only of reversal on appeal, and shall not otherwise invalidate the judgment; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal.

1. Suit brought in Justice's Court for township No. 5, service on defendant in township No. 3, by Constable of township No. 3. Defendant appears, and before filing answer, moves to dismiss the action, on the grounds : 1st. That the Court has no jurisdiction of the person of defendant; 2d. That the return of the officer is insufficient to give jurisdiction: Held, that the motion was properly denied ; that defendant could not thus defeat the whole case in limine upon the insufficiencies of the record, though the action might be thus dismissed if the facts were shown to be such that the record could not be amended. Hamilton v. McDonald, 18 Cal. 128.

§ 592. Judgment for plaintiff by default.

When the defendant fails to appear and answer, judgment shall be given for the plaintiff, as follows:

« PředchozíPokračovat »