CHAPTER XXXIX. OF MOTIONS, ORDERS AND SOME GENERAL PROVISIONS AS TO CIVIL REMEDIES. Every direction of the court or judge made or entered in writing and not included in a judgment is denominated an order. An application for an order is a motion.1 An order made out of court without notice to the adverse party may be vacated or modified without notice, by the judge who made it; or may be vacated or modified on notice in the manner in which other motions are made.2 If an application for an order made to a judge of a court in which the action or proceedings is pending is refused in whole or in part, or is granted conditionally, no subsequent application for the same order shall be made to any court commissioner, or any other judge, except of a higher court; but this does not apply to motions refused for informality in the papers or proceedings necessary to obtain the order, or to motions refused with liberty to renew the same.3 A judge who has denied a motion in whole or in part may grant leave to renew such motion. Motions must be made in the county, or city and county, in which the action is pending. Orders made out of court, may be made by the judge of the court, in any part of the state.* When a written notice of a motion is necessary, such notice must be given within the time and as prescribed by section 1005 of the Code of Civil Procedure. In all cases, however, the court 1. Code of Civil Procedure, Sec. 1003. or a judge thereof, may prescribe a time for giving such notice. shorter than that prescribed by said section.5 When notice of a motion is given, or an order to show cause is made, to be tried before the judge out of court, and the judge is unable to hear the parties, he may make an order transferring the hearing to some other judge before whom the matter might originally have been brought.R Whenever an order for the payment of a sum of money is made by a court pursuant to the provisions of the Code of Civil Procedure, it may be enforced in the same manner as if it were a judgment. Notices must be in writing, and notices and other papers may be served upon the party or his attorney in the manner prescribed in sections 1005, 1011, 1012 and 1013 of the Code of Civil Procedure. In making such service great care should be taken to make the service as prescribed by such sections, and in preparing the affidavit of such service, unless the service be admitted, the affidavit must show that the service was so made." A service by mail is complete (if the notice be properly served by mail, and in the manner prescribed in said sections of the Code of Civil Procedure) when the notice is deposited in the postoffice; but if within a given number of days after such service, a right may be exercised or act is to be done by the adverse party, the time within which such right is to be exercised or act be done is extended one day, for every twenty-five miles distance between the place of the deposit and the place of the address. Such extension, however, is not to exceed, ninety days in all.10 A defendant appears in an action when he answers, demurs or gives to the plaintiff notice of his appearance, or when an attorney gives notice of appearance for him. After appearance a defendant, or his attorneys, is entitled to notice of all subsequent proceedings of which notice is required to be given. But 5. Code of Civil Procedure, Sec. 1005. 8. Code of Civil Procedure, Sec. 1010. 9. Heinlen v. Heilbron, 94 Cal. 636; Moore v. Besse, 35 Cal. 184. where a defendant has not appeared, service of notice of papers need not be made upon him unless he is imprisoned for want of bail.11 When a plaintiff or a defendant who has appeared, resides out of the state, and has no attorney in the action or proceedings, the service may be made on the clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers when required, must be upon the attorney instead of the party, except of writs, subpoenas, and other process issued in the suit, and of papers to bring him into contempt.12 Section 1017 of the Code of Civil Procedure, provides for the transmission by telegraph, of any summons, writ, or order in a civil suit or proceeding, and of all other papers requiring service, and for the service of a telegraphic copy thereof, and how the evidence showing such service is to be made. An affidavit, notice or other paper, without the title of the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose, as if duly entitled, if it intelligibly refer to such action or proceeding.13 An affidavit is a written declaration under oath made without notice to the adverse party.14 Section 2009 to section 2015 of the Code of Civil Procedure, both sections included, provide for what purposes affidavits can be used, by whom they are to be made, and how the making of such affidavits is to be authenticated. It is provided in section 2010 of that code that evidence of the publication of a document or notice required by law or by an order of a court or judge to be published in a newspaper, may be given by the affidavit of the printer of the newspaper or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when, and the paper in which the publication was made. Successive actions may be maintained upon the same con 11. Code of Civil Procedure, Sec. 1014. 13. Code of Civil Procedure, Sec. 1046. 14. Code of Civil Procedure, Sec. 2003. tract or transaction whenever, after the former action, a new cause of action arises therefrom. 15 If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original. 16 This can be done upon motion based on affidavits showing what the lost paper contained and upon proper notice of such motion to the adverse party.17 An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appealing has passed, unless the judgment is sooner satisfied.18 Whenever two or more actions are pending at one time between the same parties and in the same court upon causes of action which might have been joined, the court may order the actions to be consolidated.19 An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property upon an alleged obligation; and also against two or more persons for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as a surety.20 When there are three referees or three arbitrators all must meet, but two of them may do any act which might be done by all.21 It is provided in section 15 of the Code of Civil Procedure that words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. 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 judg 15. Code of Civil Procedure, Sec. 1047. 18. Code of Civil Procedure, Sec. 1049. ment recovered shall be conclusive evidence of his right to recover against such sureties, and the court may on motion, upon notice of five days, order judgment up against them for the amount so recovered, including costs.22 Section 1056 of the Code of Civil Procedure provides for corporations, organized under the laws of this or any other state for the purpose of being a surety, becoming a surety on bonds and undertakings, and for such corporation being accepted as a surety on bonds and undertakings required to be given under the laws of this state. It is provided in section 1057 of the same code that in any case where an undertaking or bond is authorized or required by any law of this state, the officer taking the same must (except the surety be a corporation accepted as a surety under the provisions of said section 1056), require the sureties to accompany it with an affidavit that they are each residents and householders (or freeholders) within the state and are each worth the sum specified in the undertaking, or bond, over and above all his just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking or bond exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth an amount less than the amount specified in the undertaking or bond, if the whole amount be equal to that of two sufficient sureties. In any civil action or proceeding within the state of California wherein the state, or the people of the state is a party plaintiff or any state officer in his official capacity, or in behalf of the state, or any county, city and county, city or town, is a party plaintiff or defendant, no bond, written undertaking, or security, can be required of the state, or the people thereof, or any officer thereof, or of any county, city and county, city or town; but on complying with the other provisions of the Code of Civil Procedure, the state, or the people thereof or any state officer acting in his official capacity, have the same rights, remedies and benefits, as if the bond, undertaking or security were 22. Code of Civil Procedure, Sec. 1055. |
