1. If the infant be plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years; if under that age, upon the application of a relative or friend; 2. If the infant be defendant, the guardian must be appointed at the time the summons is returned, or before the answer. It is the right of the infant to nominate his own guardian, if the infant be over fourteen years of age; otherwise the justice must make the appointment. [Amendment, approved March 24, 1874; Amendments 1873-4, 333; took effect July 1, 1874.(a) 10,844. Summons, how issued, directed, and what to contain. SEC. 844. The summons must be directed to the defendant, and signed by the justice, and must contain: 1. The title of the court, name of the county and city or township in which the action is commenced, and the names of the parties thereto; 2. A sufficient statement of the cause of action, in general terms, to apprise the defendant of the nature of the claim against him; 3. A direction that the defendant appear and answer before the justice at his office, as specified in section 845; 4. In an action arising on a contract for the recovery of money, or damages, only a notice that unless the defendant so appear and answer, the plaintiff will take judgment for the sum claimed by him (stating it); 5. In other actions, a notice that unless defendant so appear and answer, the plaintiff will apply to the court for the relief demanded. If the plaintiff has appeared by attorney, the name of the attorney must be indorsed upon the summons. [Amendment, approved April 3, 1876; Amendments 1875-6, 98; took effect sixtieth day from passage. (b) 10,845. Time for appearance of defendant. SEC. 845. The time specified in the summons for the appearance of the defendant must be as follows: 1. If an order of arrest be indorsed on the summons, forthwith; 2. In all other cases the summons must contain a direction that the defendant must appear and answer the complaint within five days, if the summons be served in the township in which the action is brought; within ten days, if served out of the township, but in the county in which the action is brought; and within twenty days if served elsewhere. [Amendment, approved April 3, 1876; Amendments 1875-6, 98; took effect sixtieth day after passage.() An Act to regulate proceedings in civil cases in the justices' court of the city and county of Time of appearance in justices' court of San Francisco. SECTION 1. The time in which the summons shall require the defendant to appear and answer the complaint shall be as follows: when the action is brought (a) Original section: SEC. 843. When a guardian is necessary, he must be appointed by the justice, as follows: 1. If the infant is plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he is of the age of fourteen years or upwards; if under that age, upon the application of some relative or friend. The consent in writing of the guardian to be appointed to act as such, and to be responsible for costs if he fail in the action, must be first filed with the justice; 2. If the infant is defendant, the guardian must be appointed at the time the summons is returned, or before the pleadings. It is the right of the infant to nominate his own guardian, if the infant is over fourteen years of age, and the proposed guardian is present and consent in writing to be appointed. Otherwise, the justice may appoint any suitable person who gives such consent. (b) The original section, instead of the words in the third subdivision, "as specified in section 815," had "at a time specified in the summons." (c) Original section: SEC. 845. The time specified in the summons for the appearance of the defendant must be as follows: 1. If an order of arrest is indorsed upon the summons, forthwith; 2. In all other cases, not less than three nor more than twelve days from its date. It was previously amended, by act of March 28, 1874; Amendments 1874-4, 407, by making the above second subdivision the third, and inserting a second subdi. vision as follows: "2. If the defendant is not a resident of the county in which the action is brought, not less than twenty nor more than thirty days from its date." وردز in the city and county of San Francisco, within three days after the service thereof. SEC. 2. This act shall take effect from and after its passage. 10,846. Alias summons. SEC. 846. If the summons is returned without being served upon any or all of the defendants, the justice, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original, except that he may fix the time for the appearance of the defendant at a period not to exceed ninety days from its date. 10,847. Same. SEC. 847. The justice may, within a year from the date of the filing of the complaint, issue as many alias summons as may be demanded by the plaintiff. 10,848. Summons, limitations on service of. SEC. 848. The summons cannot be served out of the county of the justice before whom the action is brought, except when the action is brought.upon a joint contract or obligation of two or more persons who reside in different counties, and the summons has been served upon the defendant, resident of the county, in which case the summons may be served upon the other defendant out of the county; and except, also, when an action is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different county, in which case summons may be served in the county where he resides; and except, also, where an action is brought for injury to person or property, and the defendant resides in a different county, in which case summons may be served in the county where the defendant resides. [Amendment, approved April 3, 1876; Amendments 1875-6, 98; took effect sixtieth day after passage,(^) 10,849. Summons, by whom and how served. SEC. 849. The summons may be served by a sheriff or constable of any of the counties of this state; provided, that when a summons, issued by a justice of the peace, is to be served out of the county in which it was issued, the summons shall have attached to it a certificate under seal by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace at the date of the summons, or the summons may be served by any male resident, over the age of twenty-one years, not a party to the suit, within the county where the action is brought, and must be served and returned, as provided in Title V, Part II, of this Code, or it may be served by publication; and sections 413 and 412, so far as they relate to the publication of summons, are made applicable to justices' courts; the word "justice" being substituted for the word "judge," whenever the latter word occurs. [Amendment, approved March 24, 1874; Amendments 1873-4, 407; took effect sixtieth day after passage.(b) [For Title V, Part II, of this Code, see ante, 10,405 et seq.] (a) Original section: SEC. 848. The summons cannot be served within two days of the time fixed therein for the appearance of the defendant. It was previously amended, by act of March 24, 1874; Amendments 1873-4, 333, so as to read like the amendment in the text, down to and including the words "served in the county where he resides," and then having the following additional sentence: "When the defendant resides in the county, the summons cannot be served within two days of the time fixed for the appearance of the defendant; when he resides out of the county, and the summons is served out of the county, the summons cannot be served within twenty days of such time.' (b) Original section: SEC. 849. The summons may be served by a sheriff or constable of the county, or by any male resident of the county over twenty-one years of age, not a party to the suit, and must be served and returned as prescribed in Title V, Part II, of this Code; or it may be served by publication; and sections 413 and 412, so far as they relate to the publication of summons, are made applica ble to justices' courts, the word "justice" being substituted for the word "judge," wherever the latter word occurs. An Act concerning the justices' courts of the city and county of San Francisco, and the service of summons issued therefrom. SECTION 1. The summons issued from the justices' courts may be served and returned as provided in Title V, Part II, of the Code of Civil Procedure. SEC. 2. This act shall take effect from and after its passage. 10,850. Hour for appearance. SEC. 850. When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix a day for the trial of said cause, and notify the plaintiff and the defendants who have appeared, thereof. The parties are entitled to one hour in which to appear after the time fixed in the said notice, but are not bound to remain longer than that time, unless both parties have appeared, and the justice being present, is engaged in the trial of another cause. [Amendment, approved April 3, 1876; Amendments 1875-6, 98; took effect sixtieth day after passage." CHAPTER III. PLEADINGS IN JUSTICES' COURTS. 10,851. Form of pleadings. SEC. 851. Pleadings in justices' courts: (a) 1. Are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended; 2. May, except the complaint, be oral or in writing; 3. Must not be verified, unless otherwise provided in this title; 4. If in writing, must be filed with the justice; 5. If oral, an entry of their substance must be made in the docket. 10,852. Pleadings in justices' courts. SEC. 852. The pleadings are: 10,853. Complaint defined. SEC. 853. The complaint in justices' courts is a concise statement, in writing, of the facts constituting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action is based. 10,854. Demurrer to complaint. SEC. 854. The defendant may, at any time before answering, demur to the complaint. 10,855. Answer. SEC. 855. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter-claim, upon which an action might be brought by the defendant against the plaintiff in a justice's court. 10,856. If the defendant omits to set up counter-claim. SEC. 856. If the defendant omit to set up a counter-claim in the cases mentioned in the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. (a) Original section: SEC. 850. The parties are entitled to one hour in which to appear after the time fixed in the summons, but are not bound to remain longer than that time, unless both parties have appeared, and the justice being present is engaged in the trial of another cause. 10,857. When plaintiff may demur to answer. SEC. 857. When the answer contains new matter in avoidance, or constituting a defense or a counter-claim, the plaintiff may, at any time before the trial, demur to the same for insufficiency, stating therein the grounds of such de murrer. 10,858. Proceedings on demurrer. SEC. 858. The proceedings on demurrer are as follows: 1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the court allows, amend his complaint; 2. If the demurrer to a complaint is overruled, the defendant may answer forthwith; 3. If the demurrer to an answer is sustained, the defendant may amend his answer within such time, not exceeding two days, as the court may allow. 4. If the demurrer to an answer is overruled, the action must proceed as if no demurrer had been interposed. 10,859. Amendment of pleadings. SEC. 859. Either party may, at any time before the conclusion of the trial, amend any pleading; but if the amendment is made after the issue, and it appears to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The court may also, in its discretion, when an adjournment will, by the amendment, be rendered necessary, require, as a condition to the allowance of such amendment, made after issue joined, the payment of costs to the adverse party, to be fixed by the court, not exceeding twenty dollars. The court may also, on such terms as may be just, and on payment of costs, relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect; but the application for such relief must be made within ten days after the entry of the judgment, and upon an affidavit showing good cause therefor. 10,860. Answer or demurrer to amended pleadings. SEC. 860. When a pleading is amended, the adverse party may answer or demur to it within such time, not exceeding two days, as the court may allow. 10,861. Order of arrest, and arrest of defendant. SEC. 861. An order to arrest the defendant may be indorsed on a summons issued by the justice, and the defendant may be arrested thereon by the sheriff or constable, at the time of serving the summons, and brought before the justice, and there detained until duly discharged, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the state, with intent to defraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use by one who received it in a fiduciary capacity; 3. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; 4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. 10,862. Affidavit and undertaking for order of arrest. SEC. 862. Before an order for an arrest can be made, the party applying must prove to the satisfaction of the justice by the affidavit of himself, or some other person, the facts upon which the application is founded. The plaintiff must also execute and deliver to the justice a written undertaking in the sum of three hundred dollars, with sufficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. [Amendment, approved March 24, 1874; Amendments 1873-4, 334; took effect July 1, 1874. (a) 10,863. Defendant arrested must be taken before justice immediately. SEC. 863. The defendant, immediately upon being arrested, must be taken to the office of the justice who made the order, and if he is absent or unable to try the action, or if it appears to him by the affidavit of the defendant that he is a material witness in the action, the officer must immediately take the defendant before another justice of the township or city, if there is another, and if not, then before the justice of an adjoining township, who must take jurisdiction of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him. 10,864. Officer must give notice to plaintiff of arrest. SEC. 864. The officer making the arrest must immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. 10,865. Officer must detain defendant. SEC. 865. The officer making the arrest must keep the defendant in custody until he is discharged by order of the justice. ARTICLE II. ATTACHMENT. 10,866. Allachment to issue upon affidavit. SEC. 866. A writ to attach the property of the defendant must be issued by the justice at the time of, or after issuing summons and before answer, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in section 538 of this code. [Sec. 538 will be found ante, 10,538.] 10,867. Undertaking on attachment. SEC. 867. Before issuing the writ, the justice must require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than fifty nor more than three hundred dollars, to the effect that if the defendant recover judgment the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. (a) The original section differed in the second sentence, which was as follows: "The plaintiff must also execute and deliver to the justice a written undertaking, in the sum of three hundred dollars, with two or more sureties, to the effect that if the defendant re cover judgment the plaintiff will pay to him all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking." |