Failure of parties to appear.

§ 586. If either party shall fail to appear at the time fixed for trial, or at the time to which the trial has been adjourned, the trial may proceed at the request of the adverse party, and judgment shall be rendered in conformity with the pleadings and proofs. (a) [Amendment, approved March 30, 1868, 1867-8, 550; took effect immediately.

[29 Cal. 312.]

Jury trial, when to be demanded.

§ 587. A trial by jury shall be demanded at the time of joining issue; and shall be deemed waived, if neither party then demand it. When demanded, the trial of the case shall be adjourned, until a time and place fixed for the return of the jury. If neither party desire an adjournment, the time and place shall be determined by the justice, and shall be on the same day, or within the next two days. The jury shall be summoned upon an order of the justice from the citizens of the city or township, and not from the bystanders.

Impanelment of jury.

§ 588. At the time appointed for the trial, the justice shall proceed to call, from the jurors summoned, the names of the persons to constitute the jury for the trial of the issue. The jury by consent of the parties may consist of any number not more than twelve nor less than three.

(a) Original section:

§ 586. If the plaintiff fail to appear at the return day of the summons, the action shall be dismissed. If the defendant fail to appear at the return day of the summons, or if either party fail to attend at a day to which the trial has been adjourned, or fail to make the necessary pleading or proof on his part, the case may, nevertheless, proceed, at the request of the adverse party, and judgment shall be given in conformity with the pleadings and proofs.

Talesmen.

§ 589. If a sufficient number of competent and indifferent jurors do not attend, the justice shall direct others to be summoned from the vicinity, and not from the bystanders, sufficient to complete the jury.

Challenges of jurors.

Each

$590. Either party may challenge the jurors. The challenges shall be either peremptory, or for cause. party shall be entitled to three peremptory challenges. Either party may challenge for cause, on any grounds set forth in section one hundred and sixty-two. Challenges for cause shall be tried by the justice in a summary manner, who may examine the juror challenged, and witnesses.

CHAPTER IV.

JUDGMENT AND EXECUTION.

Dismissal of action without prejudice.

$591. Judgment that the action be dismissed without prejudice to a new action, may be entered with costs in the following cases:

First. When the plaintiff voluntarily dismisses the action before it is finally submitted.

Second. When he fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter.

Third. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or township, or city; but if the objection be taken and over

ruled, it shall be the cause only of reversal on appeal, and shall not otherwise invalidate the judgment; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal.

[29 Cal. 312.]

Judgment on default.

§ 592. When the defendant fails to appear and answer, judgment shall be given for the plaintiff as follows:

First. When a copy of the account, note, bill, or other obligation upon which the action is brought, was filed with the justice at the time the summons was issued, judgment shall be given without further evidence, for the sum specified in the summons.

Second.

In other cases the justice shall hear the evidence of the plaintiff, and render judgment for such sum only as shall appear by the evidence to be just; but in no case exceeding the amount specified in the summons.

Trial without jury.

§ 593. Upon issue joined, if a jury trial be not demanded, the justice shall hear the evidence, and decide all questions of fact and of law, and render judgment accordingly.

Entry of judgment. Specific contracts.

§ 594. Upon a verdict, the justice shall immediately render judgment accordingly. When the trial is by the justice, judgment shall be entered immediately after the close of the trial, if the defendant has been arrested and is still in custody, in other cases it shall be entered within four days after the close of the trial. If the action be on a contract against two or more defendants, and the summons is

served on one or more, but not on all, the judgment shall be entered up only against those who were served, or have voluntarily appeared, if the contract be a several or a joint and several contract; but if the contract be a joint contract only, the judgment shall be entered up against all the defendants, but shall only be enforced against the joint property of all, and the individual property of the defendants served, or who have voluntarily appeared in the action. In an action on a contract or obligation in writing for the direct payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff, whether the same be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein. (a) [Amendment, approved April 27, 1863, 687; took effect from passage.

Remission of excess.

$595. When the amount found due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue.

Offer to allow judgment.

§ 596. If the defendant, at any time before the trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he do

(a) The original section consisted only of the first two sentences of the text.

It was amended May 15, 1854, 84, so as to consist of all but the last sentence, except that it made no provision for voluntary appear

ance.

not accept such offer before the trial, and fail to recover in the action a sum equal to the offer, he shall not recover costs, but costs shall be adjudged against him, and if he recover, deducted from his recovery. But the offer and failure to accept it shall not be given in evidence to affect the recovery otherwise than as to costs, as above provided.

Judgment when imprisonment allowed.

§ 597. When a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it shall be so stated in the judgment, and entered in the docket.

Judgment for costs.

§ 598. When the prevailing party is entitled to costs by this chapter, the justice shall add their amount to the verdict ; or in case of a failure of the plaintiff to recover, or in case of a dismissal of the action, shall enter up judgment in favor of the defendant for the amount of such costs.

Transcript of judgment. How made lien on real estate, etc. § 599. The justice, on demand of the party in whose favor judgment is rendered, shall give him a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the county clerk shall be noted by him thereon and entered in the docket; and from that time executions may be issued by the county clerk on such judgments to the sheriff of any other county of the State, in the same manner as upon judgments recovered in the higher courts. All process upon judgments recovered in justices' courts to be executed within the same county, shall be issued by the justice or his successors in office. No judg