Obrázky stránek
PDF
ePub

FORM No. 1113-Order on stipulation, setting aside default judgment.

[Title of court and cause.]

19,

Good cause appearing therefor, and pursuant to a stipulation between the parties hereto, made and entered into on and filed herein:

day of

"

It is hereby ordered, that the judgment entered herein on the 19 be and the same is hereby vacated and set aside, and defendant is hereby given leave to file his demurrer herein, and to pursue such other defenses herein as he may be advised. [Date.]

S. T., Judge.

[ocr errors]

§ 478. SUBSTITUTION OF ATTORNEYS.

FORM No. 1114-Notice of substitution of attorneys.

(In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.)

[Title of court and cause.]

To

, defendants herein, and to

"

their attorneys: Please take notice, that after this day I have substituted Bell, York & Bell, as my attorneys, in the place and stead of Percy S. King, and that the said Percy S. King has in writing consented to the said substitution.

Dated April 12, 1905.

Abel McFarland, Plaintiff.
Bell, York & Bell,

Attorneys for plaintiff.

FORM No. 1115-Consent to substitution of attorneys.

(In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.)

[Title of court and cause.]

Consent and notice is hereby given of the substitution of Bell, York & Bell, as attorneys for the plaintiff, for and in the place and stead of the undersigned.

Dated Jan. 20, 1904.

Percy S. King,

Attorney for the plaintiff.

FORM No. 1116-Acknowledgment of notice and service of substitution. [Title of court and cause.]

Due notice and service of a copy of the above notice of substitution of attorneys for the plaintiff [or defendant] in the aboveentitled action is hereby admitted this day of 19 . A. B., Attorney for defendant [or plaintiff).

>

§ 479. ANNOTATIONS.-Appearance and default, and substitution of attor

neys.

1. Appearance.-Effect of request for time to answer.

2, 3. Asking permission to plead to merits.

4, 5. Appearance to merits.

6. Setting cause for trial.

7, 8. Effect of general appearance.

9. Statutory provisions as to general appearance.

10. Entry of general appearance on appeal.

11. Default.-Effect of entry.

12. Issues of law preclude default.

13. Substitution.-California procedure.

14. Notice of substitution by citation.-Washington practice.
15. Wisconsin rule.

16. Substitution pending appeal.

17. Authority to attorney coupled with interest.

18. Service of notice of appeal where no substitution is made.

1. APPEARANCE.-Effect of request for time to answer.-A request for time in which to answer the merits constitutes a general appearance, the effect and scope of which may not be limited by any statement on the part of counsel that he desires the record to show that his appearance is special: State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1100.

2. Asking permission to plead to merits. Where a party appears, either before or after judgment, and asks permission to plead to the merits of the cause, he thereby waives all irregularities in the service of process: Mayer v. Mayer, 27 Ore. 133, 39 Pac. 1002, cited and approved in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101. It is a settled rule that if a party desires to take advantage of want of service of process sufficient to give the court jurisdiction of his person, he must specially appear for that purpose only: Gilbert-Arnold L. Co. v. O'Hare, 93 Wis. 194, 67 N. W. 38.

3. A defendant waives his right to object to a judgment for want of proper service of summons by appearing and asking leave to answer to the merits: Mayer v. Mayer, 27 Ore. 133, 39 Pac. 1002; Anderson v. McClellan (Ore.), 102 Pac. 1015, 1016, (ejectment).

4. Appearance to the merits.-An appearance by the defendant to the merits of the action, in a case where the court is possessed of jurisdiction over the subject-matter, confers complete jurisdiction over the person: Columbia Brewery Co. v. Forgey, 140 Mo. App. 605, 120 S. W. 625, 628; Wicecarver v.

Mercantile etc. Ins. Co., 137 Mo. App. 247, 117 S. W. 698; Thomasson v. Mercantile etc. Ins. Co., 114 Mo. App. 109, 89 S. W. 564, 1135, 116 S. W. 1092; McClure v. Paducah Iron Co., 90 Mo. App. 567.

5. An answer to the merits, as a general rule, operates as a voluntary appearance: Wicecarver V. Mercantile etc. I. Co., 137 Mo. App. 247, 117 S. W. 698, 701. Appearance by demurrer is a general appearance, even though it is stated therein that the appearance is made simply and only for the purposes of the demurrer: McDonald v. Agnew, 122 Cal. 448, 450, 55 Pac. 125; and it is held, that where an appearance is made to challenge a judgment or order not merely on jurisdictional grounds, but also on non-jurisdictional grounds, the appearance is general, no matter what the parties may call it in their motion: Burdette v. Corgan, 26 Kan. 102.

6. Setting cause for trial.-An appearance for the purpose of setting a cause for trial operates to waive the matter of jurisdiction over the person of the defendant and confers jurisdiction upon the court to proceed: Orear v. Clough, 52 Mo. 55.

7. Effect of general appearance.-A general appearance is equivalent to personal service of summnns: State ex r Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1100, citing Anderson v. Burchett, 48 Kan. 781, 30 Pac. 174.

8. The service of the summons and of a copy of the complaint, or the voluntary appearance of the defendant, invests the court with jurisdiction of the parties and control of all the subsequent

proceedings: Bell V. Camm, 10 Cal. App. 388, 102 Pac. 225, 226, construing Cal. Code Civ. Proc., § 416.

9. Statutory provisions as to general appearance.--Where the statute defines what shall constitute an appearance, as, for instance, under section 1014 of the California Code of Civil Procedure, "A defendant appears in an action when he answers, demurs or gives written notice of his appearance, or when an attorney gives notice for him, and he can appear in no other way"; held, that the manner and effect of appearances are determined by the statute alone: Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 470; Powers v. Braly, 75 Cal. 237, 17 Pac. 197; Benedict v. Arnoux, 38 N. Y. Supp. 882; Bell v. Good, 22 Civ. Proc. Rep. 317, 356, 19 N. Y. Supp. 693, citing N. Y. Code Civ. Proc., § 421, Cal. Code Civ. Proc., § 1014. The principle involved in the California and New York cases is called in question in some jurisdictions, inasmuch as it is evidently not the intention of the legislature to make the means defined in the statute the only means by which a defendant may appear. The purpose of the statute is simply to assure the defendant of notice of all subsequent proceedings in the cause after he had filed and served an answer, demurrer, or notice of appearance: State ex rel. Curtis v. McCullough, 3 Nev. 202; State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101.

10. Entry of a general appearance on appeal, without reserving or alluding to a special appearance, waives the special appearance and gives the appellate court full and complete jurisdiction over the subject-matter of the action and the parties to the appeal: Columbia etc. R. Co. v. Moss, 53 Wash. 512, 102 Pac. 439.

11. DEFAULT.-Entry of default presupposes that the demurrer and motion had been acted upon and overruled and no answer made: Smith v. Clyne, 16 Idaho 466, 101 Pac. 819.

12. Issues of law preclude default.Where issues of law are presented, either upon demurrer or motion, the court is required to decide the same, and the defendant is not in default until such issues of law are disposed of: Winchester v. Black, 134 Cal. 125, 66 Pac. 197; Oliphant v. Whitney, 34 Cal. 25. See, also, Smith v. Clyne, 16 Idaho 466, 101 Pac. 819, 820.

pro

13. SUBSTITUTION.-California cedure. A substitution or change of attorneys may be made under the California Code of Civil Procedure (§ 285), in one of two ways: (1) Upon consent of both attorney and client filed with the clerk or entered upon the minutes; or (2) upon the order of the court upon the application of either client or attorney, after notice from one to the other. Where the mode last designated is employed, a petition is insufficient which does not allege that notice was given: Rundberg v. Belcher, 118 Cal. 589, 590, 50 Pac. 670, (denying application for writ of mandate to compel substitution).

14. Notice of substitution by citation. -Washington practice.-Under a Washington statute (§ 4769 Bal. Code), to the effect that a substitution may be ordered at any time before judgment or final determination, provided the charges of the attorney have been paid, it is immaterial as to what method of giving notice of the motion is employed so long as reasonable notice is given. While the usual method is by notice of motion, there can be no valid objection to notice by citation: Schultheis v. Nash, 27 Wash. 250, 67 Pac. 707. Under the California statute, the indebtedness of a client to his attorney for services rendered in the action can not prevent substitution: Gage v. Atwater, 136 Cal. 170, 172, 68 Pac. 581.

15. Wisconsin rule.-Under the Wisconsin practice, substitution of an attorney shall be granted only where consent in writing, signed by the party and his attorney, is given; or for cause shown on due notice to the court or judge, upon such terms as shall be just: Circuit Court Rule V, § 2, construed in McMahon v. Snyder, 117 Wis. 463, 466, 94 N. W. 351.

16. Substitution pending appeal.-Substitution must be made in the trial court where, after default entered and appeal taken, motion is made to that end, and, when so made, the substituted attorney will be ordered substituted as the attorney of record on the appeal: Woodbury v. Nevada S. R. Co., 120 Cal. 367, 368, 52 Pac. 650. See Chamberlain v. Hedger, 10 S. Dak. 290, 73 N. W. 75. And substitution of an attorney after appeal should be followed by like substitution in the trial court: Reay V.

Heazelton, 128 Cal. 335, 338, 60 Pac.

977.

17. Authority to attorney coupled with interest.-Form of authority to attorney to prosecute to settlement and judgment an action for damages, with authority to compromise, etc.: Gulf Colorado etc. R. Co. v. Miller, 21 Tex. Civ. App. 609, 610, 53 S. W. 709, (authority held not revocable at the instance of the client alone, in the absence of fraud, because of interest coupled with the contract)..

§ 480. Notice of pendency of action.... Form No. 1117. Common form

CHAPTER CXXXVI.

Notices, Motions, and Orders.

.....

§ 481. Notices, generally
Form No. 1118. Notice of decision

§ 482. Orders .

18. Service of notice of appeal where no substitution is made.-Service of notice of appeal on attorney who signed original answer of defendant, although another signed the amended answer, where there was never any substitution of attorneys, is good, although the defendant represented by such attorney was dead at the time of service: Lacoste v. Eastland, 117 Cal. 673, 680, 49 Pac. 1046.

Form No. 1119. Notice of decision in favor of defendants and
cross-complainant

Form No. 1120. Notice of time of trial. (With waiver by
plaintiff of trial by jury.)......
..... 1830
Form No. 1121. Notice to produce documents for use on the
trial

.....

[ocr errors]

Form No. 1122. Notice of motion to dismiss action....
Form No. 1123. Notice of overruling demurrer and granting
time to answer

...

Form No. 1124. Order extending time to plead...
Form No. 1125. Order assigning cause

Form No. 1126. Order denying or overruling motion in general
Form No. 1127. Order on motion to strike pleading from the
files.
Form No. 1128. Order granting time to answer upon overruling
demurrer
Form No. 1129. Order granting time to amend after sustaining
demurrer.

Order to show cause.

...

Form No. 1130. Form No. 1131. Order suspending power of executor..... Form No. 1132. Restraining order to executor, and order to show cause Form No. 1133. Order revoking letters testamentary....... § 483. Annotations

....

.....

Page

1829

1829

1829

1829

.....

1830

1830 1831

1831

1832

1832

1832

1832

1832

1833

1833

1833 1834

1834

1835

1835

§ 480. NOTICE OF PENDENCY OF ACTION. FORM No. 1117-Common form.

[Title of court and cause.]

9

Notice is hereby given, that on the day of 19 an action was commenced in the above-entitled court and cause for the [here state the nature of the action affecting the title or right of possession of the real property involved]; that the names of the parties hereto are as follows: [Here name all the parties, and whether plaintiff or defendant]; that the object of said action [or defense] is as follows: [Here state the object of the action or defense, whether foreclosure, to quiet title, ejectment, for partition, to establish a trust in the lands, etc.]; that the following is a description of the property affected by said action [or defense], to wit: [Here describe property, following the same description as contained in the complaint, or cross-complaint, etc.]

[Date.]

§ 481.

NOTICES, GENERALLY.

FORM No. 1118-Notice of decision.

[Date.]

Jury's Pl.-116.

[Under the statutes, generally, the plaintiff, where the complaint (or petition) affects the title or the right of possession to real property, or the defendant, crosscomplainant, or intervener, where an affirmative cause is set up in the answer, cross-complaint, or complaint in intervention, may, and should, record at the time of filing the particular pleading, or within a time subsequently as provided by statute, a notice of the pendency of the action. A reference should be made to the particular statute of the state relating to such notice as to the time and manner of recording the same.]

[Signature of plaintiff.]

Or, A. B., Attorney for plaintiff.

[ocr errors]

[Title of court and cause.] To defendant,

and to

his attorney:

"

9

You will please take notice, that in the above-entitled action decision was rendered, and written findings of fact and conclusions of law signed and filed therein, on 19, in favor of plaintiff and against the defendant, in accordance with the prayer of plaintiff's complaint; that judgment and decree were thereupon on said day signed and filed in favor of plaintiff and against defendant [quieting the title of plaintiff as against said defendants in and to the real estate in plaintiff's complaint described; or state substance of other relief granted]; that said decree and judgment has been entered in the office of the county clerk of the county of state

of

A. B., Attorney for plaintiff.

[ocr errors]
[ocr errors]
« PředchozíPokračovat »