4th. When, from any cause, the judge is disqualified from acting in the action. 1. An appeal does not lie from an order granting a change of venue.―Juan v. Ingoldsby, 6 Cal., 439. 2. The demand for change of venue after an answer, may be disregarded.—Milligan v. Brophy, 2 Code R., 118. 3. The demand may be made simultaneously with the service of an answer.Mairs v. Remsen, 3 Code R., 138. 4. In general, all the defendants should unite in making the motion.-Sailly v. Hutton, 6 Wend., 508; Legg v. Dorsheim, 19 ib., 700; Welling v. Sweet, 1 How, Pr., 156; Simmons v. McDougall, 2 ib., 77. 5. There is no distinction between the terms "venue" and "place of trial."-Hinchman v. Butler, 7 How. Pr., 462. 6. 1st. After answer is filed it is too late to raise objections as to venue in the county.-Tooms v. Randall, 3 Cal., 438; Reyes v. Sanford, 5 ib., 117; Pearkes v. Freer, 8 Cal., April T. 7. 2d. The granting of a change of venue is discretionary with the court below, subject to review only in cases of gross abuse. The affidavits should state sufficient facts to draw from the court its own inference as to the impartial trial.—Sloan v. Smith, 3 Cal., 410. 8. 3d. In an affidavit for change of venue, the defendant must swear that each and and every one of the witnesses above named; all and every one is bad.-Harris v. Clark, 2 How. Pr., 82; Mills v. Adsit, ib., 83. 9. In an affidavit for a motion to change the venue, the town as well as the county in which the witnesses reside must be stated.-Westbrook v. Merritt, 1 How. Pr., 195; Cook v. Finch, 2 ib., 89; Van Auken v. Stewart, ib., 181. 10. The venue will not be changed where there are witnesses at the place, as well as witnesses abroad, unless there is great necessity.—Austin v. Hinckley, 13 How. Pr., 576. 11. 4th Where the judge is disqualified to sit in a cause by reason of consanguinity to one of the parties, he cannot sit even by consent of both, and if he do, the judgment will be vacated.-Oakley v. Aspinwall, 3 Coms., 547. TITLE III. OF THE MANNER OF COMMENCING CIVIL ACTIONS. (a.) 22. [1855.] Civil actions in the district courts, (b) and the county (a) STATUTES OF 1854, 194; WoOD'S DIGEST, 249, ART. 1377. An Act prescribing the manner of commencing and maintaining suits by or against counties, passed May 11, 1854. 1. Suits against a county may be commenced in any court of that county, or in a district court of the judicial district in which such county is situated, in the same manner as suits against private persons; provided, that suits between counties shall be commenced in a court of competent jurisdiction, in any county not a party to such action. 2. In counties where there is a board of supervisors, having an acting chairman or president of such board, the original process and papers shall be served on such chairman or president, in the same manner as upon private persons; when there is no such chairman or president, they shall in like manner be served on the county judge of the county. 3. Immediately on the service of such process it shall be the duty of the officer so served, to deliver such process, and all papers accompanying the same, to the district attorney for such county, whose duty it shall be to defend such cause or proceeding on the part of such county, until final judgment or compromise of such suit or proceeding. 4. Suits brought for or against a county, shall be by or in the name of such county. STATUTES OF 1855, 56, §24; WOOD'S DIGEST, 696, ART. 3333. 24. No person shall sue a county in any case, or for any demand, unless he or she shall first present his or her claim or demand to the board of supervisors for allowance; and if they fail or refuse to allow the same, or some part thereof, the party feeling aggrieved may sue the county; and if the party suing recover in the action more than said board allowed or offered to allow, said board shall allow the amount of the said judgment and costs as a just claim against the county; but if the party suing shall not recover more than the board shall have offered to allow him or her, then costs shall be recovered against him or her by the county. All claims for services and items of account of a similar nature, presented by any one person to the board of supervisors at any session of the board, shall be included in one account, and so considered by the board, unless by consent of the board. 1. The provisions of these statutes sustained in Price v. Sacramento county, 6 Cal., 255; Gilman v. Contra Costra county, ib., 676; McCann v. Sierra county, 7 Cal., Jan. T.; Placer county v. Astin, ib., Oct. T. 2. These statutes were passed to obviate the decision of Hunsacker v. Borden, 5 Cal., 288. (b) The superior court of San Francisco city abolished.-Statutes of 1857, 128. When summons may issue. CHAP. CCCXIV.-An Act to amend an Act entitled "An Act to regulate Proceedings in Civil Cases in the Courts of Justice in this State," passed April twenty-ninth, one thousand eight hundred and fifty-one, and other Acts amendatory thereto. [Approved April 28, 1860.] The People of the State of California, represented in Senate and SECTION 1. Section twenty-three of said act is amended so as to read as follows: Sec. 23. The Clerk shall indorse on the complaint, the day, month, and year, the same is filed, and at any time within one year after the filing of the same, the plaintiff may have a summons issued. The summons shall be signed by the Clerk and directed to the defendant, and be issued under the seal of the court. courts, shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon. Provided, that after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer, shall be deemed a waiver of summons. 1. Where a summons was issued and served in the morning, by which the defendants were cited to appear and answer the complaint in the court of First Instance, at 10 o'clock, and judgment was rendered against them at 9 o'clock on the morning of the same day held, that the judgment was irregular, and should be reversed, notwithstanding the court offered them permission to come in at a subsequent day, and make their defense.-Parker v. Shephard, 1 Cal., 131. 2. In the absence of any statute to that effect, the state cannot be sued, and a judgment against it, is erroneous.—People v. Talmage, 6 ̊Cal., 256; Meyer v. English, 8 Cal., Jan. T. 3. Lodging the summons with the sheriff with intent that it should be served, is sufficient. Gregory v. Wiener, 1 Code R., N. S., 210. 23. The clerk shall endee on the complaint, the day, month, and year the same is filed; and at any time after the filing, the plaintiff may have a sum issued. The summons shall be signed by the" clerk, and directed to the defendant, and be issued under the seal of the court. 24. [1854.] The summons shall state the parties to the action, the court in which it is brought, the county in which the complaint is filed, and require the defendant to appear and answer the complaint within the time mentioned in the next section, after the service of summons, exclusive of the day of service, or that judgment by default will be taken against him, according to the prayer of the complaint, briefly stating the sum or other relief demanded in the complaint. 1. If the summons be radically defective, it will not support a judgment by default. -The State v. Woodlief, 2 Cal., 241. 2. A default admits every issuable fact stated in the complaint.—Harlan v. Smith, 6 Cal., 173. 3. Where a defendant is sued as James, service was returned upon John, and judgment entered against J.: held, to amount to error, unless the person served is shown to be the person sued.-Sutter v. Cox, 6 Cal., 415. 4. A judgment rendered upon irregular process can be attacked directly, but not collaterally.-Whitwell v. Barbier, 7 Cal., Jan. T.; Dorente v. Sullivan, ib. 5. In an action where the complaint alleges fraud, the summons must apprise the defendant that upon a failure to answer, the judgment will be taken against him for Amended 1040-1205 |