§ 641. Proceedings shall be conducted as in Justices' Courts. All proceedings in civil actions in Recorders' and Mayors' Courts, except as herein otherwise provided, shall be conducted in the same manner as in civil actions in Justices' Courts. § 642. This title applicable to Mayors' and Recorders' Courts. The provisions of this title shall be applicable to civil actions in Recorders' and Mayors' Courts already established, or which may hereafter be established in any incorporated city of this State. TITLE XVIII. MISCELLANEOUS PROVISIONS. SEC. 643. Supreme Court may make rules for itself and District Courts. 644. County Clerk, what Courts Clerk of. 645. Actions against a Sheriff for official acts. 646. Actions may be prosecuted in the Spanish language in certain counties. 647. Use and definition of certain words as used in this Act. 648. Certain Acts repealed. 649. When this Act is to take effect. 650. Undertakings mentioned in this Act, requisites of. 651. Receivers in actions respecting mining claims. 652. Receivers, duties and compensation of. 653. Writs of certiorari and mandamus, who may issue. Hearing may be in vacation. 654. Property attached may be sold as under execution, if the interests of the parties require. 655. Certified copies of certain papers may be admitted in 656. Partners may be sued by their common name. 659. Intervention, who may make. Definition. 663. Testimony to be taken by the Clerk on request. 665. Executions for costs may issue on filing remittitur, or 666. Repealing certain laws, and reviving others. 667. When supplementary Act to take effect. § 643. Supreme Court may make rules for itself and the Dis trict Courts. The Supreme Court may make rules not inconsistent with the Constitution and laws of the State, for its own Government, and the Government of the District Courts and the Superior Court of the City of San Francisco; but such rules shall not be in force until thirty days after their adoption and publication. 1. The Superior Court of the City of San Francisco abolished May 1st, 1857. § 644. County Clerk, what Courts Clerk of. The County Clerk shall be the Clerk of the County Court, the Court of Sessions, and the Probate Court of his county. Until otherwise provided by law, the Clerk of the Superior Court of the City of San Francisco shall be appointed by the said Court. § 645. Actions against a Sheriff for official acts. If an action be brought against a Sheriff for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties; and the Court or Judge in vacation may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs. § 646. Actions may be prosecuted in the Spanish language in certain counties. [1857, 1862.] In the counties of Monterey, San Luis Obispo, Santa Barbara, Los Angeles and San Diego, it shall be the duty of the officer to give the defendant, in a civil action, if said defendant shall require it, a copy of the summons or other process in the Spanish language; and in the counties of Santa Barbara, San Luis Obispo, Los Angeles, San Diego, and Monterey, it shall be lawful, with the consent of both parties, to have the process, pleadings, and other proceedings in a cause, in the Spanish language. § 647. Use and definition of certain words used in this Act. Words used in this Act in the present tense, shall be deemed to include the future as well as the present; words used in the singular number shall be deemed to include the plural, and the plural the singular; writing shall be deemed to include printing or printed paper; oath to include affirmation or declaration; signature or subscription to include mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name, as a witness. § 648. Certain Acts repealed. The following statutes, namely: the Act entitled "An Act to Regulate Proceedings in Civil Cases in the District Court, the Superior Court of the city of San Francisco, and the Supreme Court," passed April twenty-second, eighteen hundred and fifty; the Act entitled "An Act to Regulate Proceedings against Debtors by Attachment," passed April twenty-second, eighteen hundred and fifty; the Act entitled "An Act providing for the Collection of Demands against Vessels and Boats," passed April tenth, eighteen hundred and fifty; the Act entitled "An Act to Regulate Proceedings in Courts of Justices of the Peace in Civil Cases," passed April tenth, eighteen hundred and fifty; and the Act entitled "An Act to Regulate Proceedings in the County Courts in Cases of Appeal from the Courts of Justices of the Peace," passed April eleventh, eighteen hundred and fifty; the Act entitled "An Act respecting Set-offs," passed [April] twenty-second, eighteen hundred and fifty, are hereby repealed; but such repeal shall not invalidate any judgment rendered, or order made, or any proceeding already taken by virtue of said statutes. § 649. When this Act to take effect. This Act shall take effect on the first day of July, of the present year. 1. The following sections, from six hundred and fifty to six hundred and fiftyseven, are supplementary provisions, enacted in "An Act amendatory of, and supplementary to, an Act entitled an Act to Regulate Proceedings in Civil Cases in the Courts of Justice of this State." Passed May 15th, 1854. § 650. Undertakings mentioned in this Act, requisites of. [SEC. 62, 1854.] In all cases where an undertaking with sureties is required by the provisions of said Act, the Judge, Justice, Clerk, or other officer taking the same, shall require the sureties to accompany the same with an affidavit that they are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; provided, that when the amount specified in the undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. 1. The affidavit is sufficient, if, when fairly construed, it comply with the statute. Taaffe v. Rosenthall, 7 Cal. 514. 2. Where a mere defective undertaking has been bona fide given, and the party will file a good one before the case is submitted, the Court should permit him to do Coulter v. Stark, 7 Cal. 244; Bryan v. Berry, 7 Cal. 130; Cunningham v. Hopkins, 8 Cal. 33. So. 3. If an undertaking has been executed by the plaintiff, and is executed to the defendant by a wrong name, the latter has his remedy and may describe it as given to him, and may show that he was the party intended. Morgan v. Thrift, 2 Cal. 563. 4. An attorney-at-law is disqualified from acting as bail. Wheeler v. Wilcor, 7 Cal. 73. 5. Taking all our statutes together, the obvious design was to put an undertaking on the same footing as a bond. Canfield v. Bates, 13 Cal. 606. 6. In an action on a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors. Lindsay v. Flint, 4 Cal. 88. § 651. Receivers in actions respecting mining claims. [SEC. 63, 1854, 1855.] In actions respecting miners' claims, in a Justice's Court, the Justice shall have power upon application of the party out of possession of the claim or claims, after notice of one day to the adverse party, to appoint a receiver of the proceeds of the claim, pending the action. If the parties agree upon a person, he shall be appointed such receiver; if the parties do not agree, the Justice shall appoint a receiver, who shall take an oath which shall be filed with the Justice, that he is not interested in the action between the parties, and that he will honestly keep an. account of all gold dust or metals of any kind, the proceeds of the claim or claims in dispute. After the appointment of such receiver, the Justice shall have power to issue a written order to any Sheriff or Constable, to put such receiver into possession of such claim, which order said Sheriff or Constable shall execute, and the receiver shall remain in possession of the claim or claims, so long as said action may remain undetermined in any Court. The Court in which the action may be pending, shall have authority, upon the application of either party, with two days' notice to the other, from time to time, to make such orders for the disposition of the proceeds of such claim or claims, for the safety of the same, as may seem proper. The Court in which the action may be pending shall also have power, upon application of the receiver, based upon his affidavit, to punish as for contempt, all persons who have been guilty of disturbing the receiver in the possession of the claims. See 143 and notes. § 652. Receivers, duties of. [SEC. 64, 1854.] The receiver mentioned in the last section shall keep an accurate account of all the proceeds of the claim pending action, and of all amounts paid out for working the same, and shall retain the proceeds, and pay the same over pursuant to the order of the Court. The receiver shall also be required, on demand of either party, to give security for the faithful performance of his trust, and shall be allowed for the same a reasonable compensation, to be paid out of the proceeds of the claim in his hands; but in no case exceeding ten per cent. upon such proceeds. § 653. Writs of certiorari and mandamus, who may issue. Hearing may be in vacation. [SEC. 65, 1854.] Writs of certiorari and mandamus may be issued in the cases prescribed by said Act by a Judge of the Supreme Court, District Court, or County Court, in vacations, and may, in the discretion of the Judge issuing the writ, be made returnable, and a hearing may be had on the return thereof in vacation. |
