or before the answer, upon the application of the infant, if he be of the age of fourteen years and apply at or before the summons is returned; if he be under the age of fourteen, or be insane or incompetent, or neglect so to apply, then upon the application of a relative or friend, or any other party to the action, or by the justice on his own motion.--1880-18. 844. The summons must be directed to the defendant, signed by the justice, and must contain: 1. The title of the court, name of the county, city and county, or township in which the action is brought, and the names of the parties thereto; 2. A direction that the defendant appear and answer before the justice, at his office, as specified in section eight hundred and forty-five of this code; 3. A notice that unless the defendant so appear and answer, the plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon contract, or will apply to the court for the relief demanded in the complaint. If the plaintiff appears by attorney, the name of the attorney must be indorsed upon the summons.--1899-100. 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, within five days, if the summons is served in the city and county, township, or city, in which the action is brought; within ten days, if served out of the township or city, but in the county in which the action is brought; and within twenty days, if served elsewhere.-1907-879. 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. 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. 848. The summons cannot be served out of the county wherein the action is brought, except in the following cases: 3. When the action is for injury to person or property, and the two or more persons, one of whom resides within the county; 2. When the action is brought against a party who has contracted in writing to perform an obligation at a particular place, and resides in a different county, in which case the summons may be served in the county where he resides; 3. When the action is for injury to person or property, and the defendant resides in a different county, in which case may be served in the county wherein he may be found; summons 4. In all cases where the defendant was a resident of the county when the action was brought, or when the obligation was incurred, and thereafter departed therefrom. in which event he may be served wherever he may be found; 5. In actions of forcible entry and detainer, or to enforce and foreclose liens on, or to recover possession of, personal property situate within the county.-1909-355. 849. The summons may be served by a sheriff or constable of any of the counties of this state or by any other person of the age of eighteen years or over not a party to the action. When a summons issued by a justice of peace is to be served out of the county in which it is issued the summons must 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 and must be served and returned as provided in title five, part two of the code, or it may be served by publication and sections four hundred and thirteen and four hundred and twelve 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 wherever the latter word occurs.-1905-27. 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 the day for the trial of said cause, whether the issue is one of law or fact, and give notice thereof to the parties to the action who have appeared, but in case any of the parties are represented by an attorney, then to such attorney; provided, however, that where a party has appeared in person, such party shall leave with the justice or justice's clerk, and the same shall be entered upon the register in the action, an address where service of the notice of hearing of such matter may be made; provided, further, that such notice shall be personally served on said person if he can be found at said address, but in case said person cannot, after due diligence, be found at said address and such fact appears by affidavit to the satisfaction of the court or a judge thereof, then the service of such notice may be by registered mail and in the manner hereinafter provided for service of notice by mail. Such notice shall be in writing, signed by the justice, and substantially in the following form, filling blanks according to the facts: In the justice court.. To ....township (or city, or city and county), county, or city and county of State of California. plaintiff, vs. plaintiff, or for plaintiff, and to defendant or for defendant. defendant. attorney attorney You and each of you will pleace take notice that the undersigned justice of the peace before whom the above-entitled cause is pending, has set for hearing the demurrer of -----9 filed in said cause (or has set the said cause for trial, as the case may be), before me at my office in said township (or city, or city and county), at on the Dated this. ..day of day of. (Signed).. 19.. 19... o'clock, Justice of the Peace. Said notice shall be served by mail or personally. When served by mail the justice of the peace shall deposit copies thereof in a sealed envelope in the post office at least ten days before the trial or hearing addressed to each of the persons on whom it is to be served at their place of residence and the postage prepaid thereon; provided, that such notice shall be served by mail only when the person on whom said service is to be made resides out of the county in which said justice's court is situated, or is absent therefrom or has appeared in person. When personally served said notice shall be served at least five days before the trial or hearing on the persons on which it is to be served by any person competent and qualified to serve a summons in a justice's court, and when personally served it shall be served, returned and filed in like manner as a summons. When a party has appeared by attorney the notice may be served in the manner prescribed_by subdivision one of section one thousand eleven of this code. The justice shall enter on his docket the date of trial or hearing; and when such notice shall have been served by mail the justice shall enter on his docket the date of mailing such notice of trial or hearing and such entry shall be prima facie evidence of the fact of such service. The parties are entitled to one hour in which to appear after the time fixed in 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.-1917-190. 851. Pleadings in jutices' courts 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 decket. 852. The pleadings are: 1. The complaint by the plaintiff; 2. The demurrer to the complaint; 3. The answer by the defendant; 4. The demurrer to the answer. 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. 854. The defendant may, at any time before answering, demur to the complaint. 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 counterclaim, upon which an action might be brought by the defendant against the plaintiff, or his assignor, in a justice's court.-1907-880. 856. If the defendant omit to set up a counterclaim in the cases mentioned in the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. 857. When the answer contains new matter in avoidance, or constituting a defense or a counterclaim, the plaintiff may, at any time before the trial, demur to the same for insufficiency, stating therein the grounds of such demurrer. 857a. Affirmative judgment may be rendered for the defendant on his cross-complaint whenever the defendant proves that he is entitled to more than the plaintiff has proven or whenever the plaintiff fails to prove that he is entitled to any judgment.-1919-727. 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. 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 notice of the entry of the judgment and upon an affidavit showing good cause therefor.-1905-254. 860. When a pleading is amended, the adverse party may answer or demur to it within such time, as the court may allow, not exceeding five days after notice of the amendment.-1921-122. 861. Order of arrest, and arrest 864. The officer must give notice of defendant. to the plaintiff of arrest. 862. Affidavit and undertaking for 865. The officer must detain the order of arrest. defendant. 863. A defendant arrested must be taken before the justice im- 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 credit ors. But no female can be arrested in any action. 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.-1873-334. 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 |