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shall wilfully make a false return of any marriage, or pretended returns a
AN ACT concerning Forcible Entries and Unlawful Detainers.
[Passed April 22, 1850.]
The People of the State of California, represented in Senate and
Assembly, do enact as follows :
Section 1. No person or persons shall hereafter make any entry Entry into lands
-how may be into lands, tenements, or other possessions, but in cases where entry made. is given by law, and in such cases, not with strong hand nor with multitude of people, but only in a peaceable manner ; and if any person from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by fine.
Sec. 2. Any Justice of the Peace shall have authority to in- Justices of the quire, as hereinafter directed, as well against those who make unlaw- quire concerning ful or forcible entry into lands, tenements, or other possessions, and and unlawful detain the same, as against those who, having lawful and peaceful may order entry into lands, tenements, or other possessions, unlawfully detain the same; and if it be found, upon such inquiry, that an unlawful or forcible entry hath been made, and that the said lands, tenements, or other possessions, after a lawful entry, are held unlawfully, then such Justice shall cause the party complaining to have restitution thereof.
Sec. 3. When any complaint shall be made in writing to any Jus- Party.com. tice of the Peace, (1) of any such unlawful or forcible entry, or un- to be summoned lawful detainer, said Justice shall issue a summons, directed to the Sheriff or any constable of the county, commanding him to summon the person or persons against whom such complaint shall have been made, to appear before the said Justice on a day in such summons named, which shall not be less than ten days from the day of issuing such summons, and at the place therein mentioned.
(1) The pleadings must be verified by the oath or affirmation of the party, See Stat. 1851, page 141, Sec. 571.
Service and return of suinmons.
SEC. 4. Such summons shall be served
person or persons against whom the same is issued, by delivering a certified copy thereof to such person or persons, at least two days before the return day thereof; and the officer serving the same shall make a special
return of the time and manner of serving such summons. Hearing of
Sec. 5. After the return of the summons, served as hereinbefore complaint.
provided, and at the time and place appointed in said summons, the Justice shall proceed to hear and determine said complaint, unless either party shall demand a jury; in which case the Justice shall issue a venire for a jury in the same manner and upon the same terms as is in other cases provided for trial by jury in Justices' Courts, and such
jury shall be sworn as in other cases. Proceedings Sec. 6. If, at the time of making of such complaint, it shall be where party complained made to appear that the person or persons against whom said comof is absent from the county. plaint is made, or either of them, are absent from the county, it shall
be the duty of the Justice before whom the same is made, to issue his summons, as hereinbefore provided, and the same may be served by leaving a certified copy thereof at the last and usual place of abode of such person or persons, not less than two days before the return day thereof, which copy shall be left with some member of the family, or some person residing at such place, of suitable age and discretion, to whom the contents thereof shall be explained by the officer leaving the same, and the officer shall make a special return of the time and manner of serving said summons, and the suit shall thereafter proceed, the same as though a personal service were had
of such summons. Adjournment of Sec. 7. The Justice may, at his discretion, adjourn any trial under
this act, not exceeding ten days, and when the defendant, his agent or attorney, shall make oath that he cannot safely proceed to trial, for want of some material witness, naming him, that he has made due exertion to obtain such witness, and believes, if an adjournment be allowed, he will be able to procure the attendance of such witness, or his deposition, in time to produce the same upon the trial; in which case, if such person or persons will give bond, with one or more sufficient sureties, conditioned to pay the said complainant for all rent that may accrue during the pending of such suit, and all costs and damages consequent upon such adjournment, the said Justice shall adjourn said cause for such reasonable time as may appear
necessary, not exceeding three months. Testimony-how Sec. 8. The testimony of any witness, which may be considered
necessary by either party, may be taken in the same manner, and
with the like effect, as is provided for the taking of testimony in other cases in Justices' Courts.
Sec. 9. On the trial, the complainant shall only be required to What complainshow, in addition to the forcible entry or detainer complained of, that show on trial. he was peaceably in actual possession at the time of a forcibly entry, or was entitled to the possession of the premises at the time of a forcible holding over. The defendant may show in his defence that he, or his ancestors, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of one whole year together next before the said inquisition, and that his interest therein is not then ended or determined, and such showing shall be a bar to the prosecution, and in no case when the title of land is necessarily involved, shall a Justice of the Peace have cognizance.
Sec. 10. If upon the trial of any complaint under this act, the Jus- Proceedings on tice or jury shall find the defendant or defendants, or either of them, complainant. guilty of the allegations in the complaint, said Justice shall thereupon enter judgment for the complainant to have restitution of the premises, and shall impose such fine, not exceeding one hundred dollars, considering all the circumstances, as he may deem just, and shall tax the costs for the complainant, and may issue execution therefor; and the said Justice shall also award and issue a writ of restitution; but if the said Justice or the jury find that the person complained of is not guilty, the Justice shall tax the costs against the complainant, and issue execution therefor.
Sec. 11. If the jury empanelled cannot agree upon a verdict, the Where jury canJustice may, with the consent of the parties, discharge them, and issue verdict. a venire returnable forthwith, or at some other time agreed upon by the parties.
Sec. 12. In all cases of a verdict by the Justice or jury for the On verdict for complainant, the damages shall be assessed as well for waste and in- damages for jury committed upon the premises, as for the rents and profits during assessed, rent, such detainer; and the verdict shall also find the monthly value of and trebled. the rents and profits of the said premises : and the complainant shall be entitled to recover treble damages against the persons against whom judgment has been rendered, which damages shall be assessed by the Justice or jury, and when so assessed shall be trebled by said Justice, and entered as a judgment in the cause upon which execution may issue.
Sec. 13. When any person shall hold over any lands, tenements, or Proceedings other possessions, after the termination of the time for which they are holding over demised, or let to him or her, or to the person under whom he or she of their termo
not agree upon a
waste, etc., to be
section not to
and demand of holds possession, or contrary to the conditions or covenants of the
lease or agreement under which he or she holds, or after any rent shall become due according to the terms of such lease or agreement, and shall remain unpaid for the space of three days, in all such cases, if the lessor, his heirs, executors, administrators, assigns, agent, or attorney, shall make demand in writing of such tenant, that he or she shall deliver possession of the premises held as aforesaid, and if such tenant shall refuse or neglect, for the space of three days after such demand, to quit the possession of such lands or tenements, or to pay the rent thereof, due and unpaid as aforesaid, upon complaint therefor to any Justice of the Peace of the proper county, the Justice shall proceed to hear, try, and determine the same, in the same manner as in other cases hereinbefore provided for, but shall impose no fine upon
any such case mentioned in this section. The preceding
Sec. 14. The preceding section shall not extend to any person apply to certain
who has, or shall have continued in possession one year after the termination of the time for which the premises were demised, or leased, or let to him or her, or those under whom he or she holds possession, or to any person who continues in possession three years,
quietly and peaceably. Penalty for not
Sec. 15. Every person summoned as a juror, or subpoenaed as a attending as juror or witness. witness, who shall not appear, or who, appearing, shall refuse to
serve or give evidence in any prosecution instituted under this act,
such default or refusal, to the use of the county, unless some reasonable cause be assigned, such fine not exceeding twenty dollars, as the said Justice shall think proper to
impose, and execution may be issued therefor. Appeal-when
Sec. 16. If either party shall feel aggrieved by the verdict of the jury or decision of the Justice, he may appeal within ten days, as in other cases tried before Justices of the Peace, and he shall give bond with two or more sufficient sureties, to be approved by said Justice, conditioned to pay all costs of such appeal, and abide the order the Court may make therein, and pay all rent and other dam
ages justly accruing during the pending of such appeal. Appellate Court. Sec. 17. Upon taking such appeal, all further proceedings in the
case shall be thereby stayed, and the Appellate Court, in all cases which are now pending or which may hereafter be brought, shall
proceed to try the case anew, and shall issue all necessary writs and Laws repealed. process to carry out the provisions of this act. All laws or parts of
laws which require a statement of the case, or evidence, or exceptions, to be taken before a Justice of the Peace on the trial of a
and how to be taken.
case for forcible entry and unlawful detainer, in order to perfect an appeal, are hereby repealed, and the same shall be tried in the Appellate Court on the evidence introduced before said Appellate Court. (1)
Sec. 18. If a writ of restitution shall have been issued previous Appeal to stay to the taking of the appeal, the Justice shall give the appellant a writ of restitucertificate of the allowance of such appeal, and upon the serving of such certificate upon the officer having such writ of restitution, said officer shall cease all further proceedings by virtue of such writ, and if such writ shall not have been completely executed, the parties in possession shall remain in possession of the premises until the appeal shall be determined.
Sec. 19. In all cases of appeal under this act, the Appellate Proceedings on Court shall not dismiss or quash the proceedings for want of form quashed for want only, provided the proceedings have been conducted substantially according to the provisions of this act.
Sec. 20. Amendments to the complaint, answer, or summons, in Amendments. matters of form only, may be allowed by the court at any time before final judgment, upon such terms as may be just, and all matters of excuse, justification, or avoidance of the allegations in the complaint, may be given in evidence under the answer.
Sec. 21. The following, or equivalent forms, may be used in proceedings under this act, to wit:
The People of the State of California To the Sheriff, or Form of any constable of the county aforesaid : Whereas A. B., of the county of
hath exhibited unto me, a Justice of the Peace for said county, a complaint against C. D., of the county of for that the said C. D., of the county of
at the county of (here insert the substance of the complaint with sufficient certainty.) You are therefore commanded to summon the said C. D., if he be found in your county, to be and appear before me at my office (or stating the place) on the
A. D. then and there to make answer unto the complaint aforesaid. Given under my hand and seal, this
E. F., Justice of the Peace.
(1) Amendment inserted from Stat. 1852, p. 158.