mortgages, bonds, etc.; the execution of trusts; the guardianship of minors; the care and superintendence of charities; and in all cases in which adequate relief cannot be given save by a court of equity.9 Under the code system of civil remedies there is but one form of civil action for the enforcément or protection of private rights and redress or prevention of private wrongs.10 In the common law courts there were fixed and prescribed forms for actions and fixed and prescribed forms for judgments in such actions. Questions of fact in such actions were determined by the verdict of a jury, and on the rendition of such verdict, if there were a general verdict, by which all the issues of fact were determined, judgment, if entered at all, must be entered on such verdict according to the form fixed and prescribed for such judgment. The court, if the verdict of the jury was allowed to stand, had no discretion as to the relief to be given by the judgment. Courts of equity can no more disregard the law than can the common law courts; but for the reason that courts of common law jurisdiction can not render and enter judgments in such courts except according to fixed and prescribed forms, there are many cases in which, under the law, a party is entitled to relief which a court of common law jurisdiction cannot, by its judgment, give. In such cases a court of equity being untrammeled by forms in respect to its judgment can give to such party the relief to which, under the law, he is entitled. Under the code system of remedies the essential differences between a court of common law jurisdiction and a court of equity, is that in a court of common law jurisdiction issues of fact may at the option of the parties to the action be determined by the verdict of a jury, and in a court of equity jurisdiction such issues of fact must ultimately be determined by the decision of the court; and in a court of common law jurisdiction the judgment of the court must be in accordance with the prescribed forms; and hampered as such court is by these forms, such court 8. Lube Eq. Pl. 22. 9. Dougherty v. Creary, 30 Cal. 290, 297. can not give to a party the relief to which in many cases under the law he is entitled, while a court of equity unhampered by forms, can give to a party to a suit within the jurisdiction of that court, the exact relief to which under the law he is entitled; and as to the extent of such relief the court may in some cases use its discretion. When the facts are found, a court of common law jurisdiction has no discretion in respect to the relief to be given by its judgment. Both courts must obey the law, and neither court has any right to disobey the mandates of the law. A court of equity has no jurisdiction of a case in which a court of common law jurisdiction can give adequate relief by its judgment or order except in a few cases where the courts have concurrent jurisdiction, but in all cases, except those over which some other tribunal has by law jurisdiction, and in respect to which there would be no remedy other than that which a court of equity could give, a court of equity as a general rule has jurisdiction. Civil remedies are under the code system, divided into two classes: First, actions; second, special proceedings. A civil action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, or for the redress or prevention of a wrong, and every other civil remedy is a special proceeding.11 An action or civil proceeding is in personam, or in rem; that is, an action or proceeding against a person as a defendant, or against a thing as defendant; or it may be against a person as a defendant, and against a thing which belongs to such a person or to which such person makes a claim. In an action against a person as a defendant, and which is not also an action against a thing which belongs to such person, or to which he makes some claim, the defendant must be served personally with the summons in the action or with proper notice of the action and of its object, and within the territorial limits of jurisdiction of the court in which the action was commenced or is pending; and if not so served, no personal judgment can be rendered against him in the action which would be enforceable 11. Code of Civil Procedure, Secs. 21, 23. against his property, except so much thereof as had before judgment been brought under the control of the court by seizure or some equivalent act. But in an action or proceeding against a thing as defendant, or in an action against a person in which the court has acquired jurisdiction over property of such person, or over property to which such person makes some claim, such property will be bound by the judgment in the action, and a summons or notice in the action need not be personally served on, or given to the owner of the property, but if such summons be served on, or notice given to such owner, in the manner prescribed by the legislature, the judgment of the court rendered in the action or proceeding will be valid so far as the right of such person to such property is affected thereby, provided the notice. given is a reasonable notice. CHAPTER V. OF THE COMMENCEMENT OF AN ACTION AND OF THE SERVICE OF THE SUMMONS THEREIN. An action is commenced by filing a complaint in the action. Within one year after the filing of such complaint a summons must be issued in the action, and such summons must be served, or a return thereon must be made within three years after the commencement of the action, otherwise the action will be dismissed on motion of any party interested in the action unless an appearance has been made by the defendant or defendants in the action within said period of three years.1 A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him.2 The summons in an action is in California issued by the clerk of the court in which the action is commenced. The summons must be served by the sheriff of the county in which the defendant served is found, or by any other person over the age of eighteen years who is not a party to the action; and the certificate of the sheriff of such service, when the summons is served by the sheriff, and when not served by a sheriff, the affidavit of the person serving the summons showing such service is evidence of such service. When the summons is not served by the sheriff the person who served the summons must show by his affidavit that at the time of the service of the summons he was of the age of eighteen years or over, and that he was not a party to the action. A copy of the complaint in the action must be served with the copy of the summons on each defendant in the action, and the evidence of service of the summons must show that such copy was so served.3 1. Code of Civil Procedure, Sec. 581, Sub. 7. 2. Code of Civil Procedure, Sec. 1014. 3. Code of Civil Procedure, Sec. 410. The summons may be issued at any time within one year after the complaint is filed; and if the action be brought against two or more defendants who reside in different counties, a summons may be issued for each of such counties at the same time. At any time within a year after the complaint is filed, a defendant. may, in writing, or by appearing and answering or demurring, waive the issuing of summons; and in an action against two or more defendants on a joint contract, and one of them has appeared in the action within one year after the complaint is filed, the other or others may be served, or appear after the year, at any time before trial.1 In case of the service of a summons the written admission by the defendant of such service when proven is evidence of such service. The voluntary appearance of a defendant in an action is equivalent to the service of a summons and copy of the complaint on him.5 An alias summons in the same form as the original may be issued by the clerk within one year after the commencement of the action, but not thereafter, in case the original summons is returned without being served on any or all of the defendants, or is lost." A service of a summons in an action may, in the cases mentioned in section 412 of the Code of Civil Procedure, and on the order of the court or of the judge thereof, be made by publication, and the sending by mail, postage prepaid, a copy of the summons and a copy of the complaint addressed to the defendant at his last. known place of residence. If such last place of residence be not known. then such sending by mail may be dispensed with.7 The affidavit to procure such order should state probative facts upon which the ultimate facts depend.S When such order for the service of a summons by publication is made, a service of the summons on the defendant personally while absent from the state, may be made out of the state; but |
