A Treatise on Code Pleading and Practice: Also Containing 1900 Forms Adapted to Practice in California, Alaska, Arizona, Idaho, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Other Code States, Volume 1

Front Cover
Bancroft-Whitney, 1910 - Civil procedure - 4353 pages
"Also containing 1900 forms adapted to practice in California, Alaska, Arizona, Idaho, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and other code states."--T.p.
 

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Contents

The same Promissory note 524 Misjoinder of parties
25
Sole traders 29 For injuries to minor child or servant
27
For seduction
30
Parties Defendant
32
Actions against assessors
33
For breach of contract
34
Unnecessary parties
35
Objection to nonjoinder
36
Waiver of defects in parties defendant
37
Actions against executors and administrators
38
Foreclosure of mortgages and mechanics liens
39
Action for fraud
40
In ejectment
41
Married woman
42
Actions by or against infants
43
For infringement of patent
44
Mandamus
45
Water and watercourses
46
Injunction
47
Injuries caused by negligence
48
Action for legacy charged on land
49
Actions against partners
50
Actions against principal and agent
51
Actions for trespass
52
Substitution of Parties and Pleadings
53
Persons severally liable on same obligation or instrumento
54
On judgment
55
Joinder of parties not bound
56
Joinder of corporation
57
FORMS IN SUBSTITUTIONS 69 Form 1 Petition by receiver to be substituted as a party to a pending action 70 Form 2 Notice of motion to substitut...
58
Form 3 Affidavit therefor 72 Form 4 Order thereon 73 Form 5 Affidavit for substitution by assignee of plaintiff
59
Form 6 Affidavit by husband after marriage of female plaintiff to continue cause in joint names of husband and wife 75 Form 7 Order by consent su...
60
Form 8 Affidavit by defendant to have plaintiffs executor substituted 77 Form 9 Notice of motion on behalf of defendant for substitu tion of plaintiff...
61
Form 10 Order of substitution 79 Form 11 Novation by substitution of new creditor 80 Form 12 The same in case of a promise to apply indebtedness...
62
Form 13 Order for revivor and continuance
63
Form 14 Affidavit for supplying the place of a lost pleading
64
General Rules of Pleadings
65
Object of pleadings 85 Construction of pleadings
66
Construction of verified pleadings
68
FORMS OF ACTIONS
70
Form of actions abolished 88 Mode of stating factsLogical order
72
Allegation of facts by direct averment
73
Certainty and clearness of allegations 91 Allegation of facts in ordinary and concise language 92 Language
74
Errors in writing grammar or spelling
76
Allegations
78
What are conclusions of law Examples
79
Examples of conclusions of
80
What facts should be allegedEssential facts
82
Unnecessary averments
83
Immaterial irrelevant and redundant matter
85
XI
87
Misnomer must be pleaded
90
Form 24 The sameMinors estate 124 Form 25 The sameInsane persons estate 125 Form 26 Caption of papers used in insolvency proceedings
97
Form 27 Caption of papers on habeas corpus 127 Form 28 Caption of papers on disbarment of an attorney 128 Form 29 Caption of papers used in ot...
98
Form 32 CommencementBy one suing for himself and others 132 Form 33 Conclusion of complaint 133 Form 34 Form of complaintComplete 134 ...
99
Form 36 Formal parts of defendants pleadingsCommence ment of demurrer 136 Form 37 Form of answer 137 Form 38 Commencement of answer b...
100
Form 39 Commencement of answer by an infant 139 Form 40 Commencement of answer by an insane person 140 Form 41 Commencement of answ...
101
Caption
102
Name of court
103
Verification of Pleadings
104
Names of parties
105
Mistakes in names
106
Fictitious names
107
Suits by or against corporations
108
Commencement
109
Prayer
110
Prayer for specific and general relief
111
Prayer for legal and equitable relief
112
Inconsistent prayer
113
Form 15 CaptionTitle of cause
114
Form 16 Title of cause where some of the parties are unknown
115
Form 17 Title of cause by or against corporation
116
Form 18 The state on the relation of an individual
117
Form 19 By guardian ad litem
118
Form 20 By assignee for creditors
119
Form 21 By and against national banks
120
Form 22 By an officer of the state
121
CHAPTER XV
124
Separate statement of causes of action
128
Accounts 195 Causes of action may be united
130
Claims in two capacities
131
Classcommon counts 198 Contracts
132
Contract of partners
133
Each cause complete 201 Injuries to the person 202 Injuries to person and property
134
Nuisance 204 Injuries to property
135
Jurisdiction 206 Money counts and warranty 207 Money had 208 Quantum meruit 209 Separate demands 210 Several counts 211 Single cause of ac...
136
Specific performance
137
Specific personal property 214 Specific real property
138
Specific relief 216 Trespass
139
Form 65 Cause of action under the money counts
140
ComplaintSplitting of Causes
142
Entire cause of action what is 220 Entirety of cause of action under contract
143
Entirety of cause of action for tort
145
Effect of splitting of cause of action
146
CHAPTER XVII
147
Verification defined
151
Written pleadings
152
Authority to take
153
Verification of complaint
154
In disbarment proceedings
155
In actions and defenses on written instruments
156
Effect of verifying complaint
157
Verification of the answer
158
Answer in condemnation suit
159
Answer in tax suits
160
When verification may be made
161
ComplaintAnticipating Defenses
162
THE DEMURRER Soction 236 Introductory 237 Definition and nature of demurrer
164
Grounds for demurrer
165
Foreclosure of Mortgages on Real Prop
166
Effects of a demurrer
168
What a demurrer admits
169
Amendment of demurrer 242 When a demurrer lies
170
When demurrer will not
173
The sameMotion to strike out 245 Demurrer will not
174
Foreclosure of Chattel Mortgages
175
Objections to prayer for relief 247 General demurrer
176
Special demurrer
179
Joint demurrer 250 Causes or grounds for demurrer
180
CHAPTER XX
181
Other action pending 268 The same Foreclosure 269 Former adjudication
187
Other action pendingQuieting titlo 271 The sameJudgment 272 The sameGround 273 Defect of parties
188
Nonjoinder of parties
189
Contract and tort
190
Meaning of term same transaction
191
Must affect all parties to the action
192
Actions improperly united 282 Actions not separately stated 283 The sameConversion
193
The sameWhen demurrer lieg
194
The sameContinued 286 The sameWaiver of objection
195
Fraudulent conveyance 287a Mandamus and injunction 288 Husband and wife
196
Injuries to person and property 290 Joint demurrer 291 MisjoinderObjections when taken
197
Penalties 293 Recognizance 294 Sheriff action against
198
Trespass
199
Res adjudicata 317 Securities
205
Services of physician 319 Specific relief 320 Stamp on note 321 Statement of grounds 322 Statue of frauds
206
Statute of limitations
207
Statutory penalty 325 Undertaking on attachment 326 Admissions by demurrer 327 What it admits
208
Written instrument 329 Foreclosure of mechanics lien Conclusion of law 330 TrespassUnavailing demurrer 331 Action commenced in wrong county
209
332 Ambiguity
210
Ejectment
211
Official bond 335 Uncertainty of descriptionConjunctive demurrer 336 The same Agency 337 Defect must be apparent
212
Waiver of objectionsFailure to demur
213
Complaint and demurrer thereto Miscellaneous cases
214
DemurrerMiscellaneous decisions pertaining
216
Sufficiency of complaintMiscellaneous decisions 342 The sameAlleging unilateral contract 343 The sameAction for recovery of personal property
217
The sameFailure to aver demurrer 345 The sameAction for removing fixtures 346 The same Allegation of damages
218
The sameAlleging mutual mistake 348 The samePreemption claimConclusion of law 349 The sameAction to determine right to patent 350 The same...
219
The sameAction against garnishee 352 The sameSpecific performance 353 The sameAverments probate of willOwnership
220
The same Dismissal for want of parties 355 The same Allegation negativing presumption of payment 356 The sameMiningclaim contest
221
Actions on contracts
224
AssumpsitCommon counts
225
Allegations of promise
226
Allegations of consideration
227
Alleging performance or excusing nonperformance
228
Allegations as to performance where conditions are concurrent
229
Averment of breach
230
Allegations of special damages
231
CHAPTER XXI
233
Answer under the codes
234
Objections not appearing on face of complaint
235
Time to answer
236
Mode of pleading defense
237
Denials in general
240
Statute or writing 392 Defense of insurance company
242
FORMS OF ANSWERS 393 Form 88 Formal parts of answerGeneral form 394 Form 89 Interposing both denial and new matter in defense
243
Form 90 Denial by assignee 396 Form 91 Specific denial 397 Form 92 General outline form of answer denial justification and mitigation Libel
244
Form 94 Commencement of answer by defendant appearing in person 400 Form 95 The sameBy defendant sued by wrong name 401 Form 96 The s...
245
Form 97 The same By lunatic 403 Form 98 The sameBy husband and wife answering jointly 404 Form 99 Answer alleging partial defense 405 Form...
246
DefensesGeneral Denial
247
Definition of general denial
248
What evidence is admissible
250
When general denial is allowable
251
Several causes of action
252
Time for plaintiff to demur
253
Plaintiffs grounds for demurrer
254
Want of jurisdictionDemurrer
255
The sameSeveral causes of action
256
Legal capacityCompanyMembership
257
The same
258
The sameCorporation
259
The sameDefect apparent
260
The same Foreign state
261
The sameGuardian
262
The sameTrustee
263
Objection waived
264
Receiver
265
Contract 424 The sameDemand
266
Denial of fraud 426 Judgment on answer 427 Admissions in the answer
267
Admissions by failure to deny
269
Answer not evidence 430 Verification of answer
270
FORMS OF GENERAL DENIAL 431 Form 102 General denial 431a Form 103 General denial of one of several causes of action
271
Form 104 General denial in replevin 433 Form 105 General denialPositive 434 Form 106 General denial as to part of a pleading
272
Form 110 Another form 439 Form 111 Another form 440 Form 112 Controverting conditions precedent 441 Form 113 Denial of deed 442 Form 1...
273
Form 115 Denial of demand 444 Form 116 Denial of falsity 445 Form 117 Denial of fraud 446 Form 118 The same Another form 447 Form 119 S...
274
Form 120 Denial of partnership 449 Form 121 Denial of representations 450 Form 122 Denial of sale 451 Form 123 Denial of a trust 452 Form 124 ...
275
265a Special administrator 266 Capacity to
276
Form 128 Denial of representative character
277
DefensesNew Matter
278
Examples of new matter
280
Pleas
281
Pleas in abatement
282
Joint plea as to one defendanto 462 Waiver by pleading to merits
283
Insufficient facts
296
DefensesSpecial Pleas
297
Bill of exchange
298
Cloud on title
299
Date illegal
300
Insufficient facts
301
The sameDefective complaint
302
Defect of parties
303
Definition of terms
304
Insufficient factsDemurrer how taken
305
UncertaintyDivorce
306
The sameEffect
307
The sameLaches
308
The sameExhibits
309
Guaranty
310
Inferential statement
311
Liens
312
Nonjoinder
323
Tenants in common 528 Jointly liable
324
PaymentHow and when must be pleaded
325
Payment by note 531 PaymentAcceptance of negotiable paperCheck 532 ReleaseHow pleaded and effect
328
Statute of frauds
331
Ultra vires
332
Limitations of action 536 Statute of limitations
333
LimitationsConstruction of answer 538 Statute of limitationsConstrued
334
LimitationsEssential allegations
335
LimitationsStatutes of different states
337
LimitationsSuspension of remedy 542 When action commenced 543 When cause of action accrues 544 Statute of limitationsContinued
338
TenderHow made and effect
340
TenderIssue joined 547 Real party in interestAllegations
341
Assignees Substitution
342
Setoff 550 Consolidated corporation
343
Incorporation denial
344
Municipal corporations
345
Dissolution of corporation 554 CorporationsEstoppel 555 EstoppelHow pleaded
347
CorporationsStockholders answer 557 Nonjoinder of stockholders 558 Failure of consideration Essential and sufficient allegations
348
JurisdictionEssential allegations
350
JurisdictionAllegations effect of FORMS OF DEFENSES IN ABATEMENT 561 Form 132 No jurisdiction of the subject or person 562 Form 133 Th...
352
Form 134 That a court of the United States possesses exclusive jurisdiction 564 Form 135 Accord and satisfaction 565 Form 136 Alteration of contra...
353
Form 137 Another action pending
354
CHAPTER SECTIONS FORMS XL Service of Summons by Publication 10701090 355365
355
Form 144 Death of defendant before suite 574 Form 145 Duress 575 Form 146 Fraud 576 Form 147 Infancy of plaintiff
356
The sameAction to contest right to purchase state lands
357
The sameInjunctionInterference with franchise
358
The same meWill contest
359
The samePertaining to trusts
360
Defects in complaint cured by answer
361
Standing on demurrer
362
Form 172 Statute of limitations California Code of Civil Pro cedure section 458
363
Form 175 Assignment of cause of action by plaintiff to third person 605 Form 176 Tender 606 Form 177 Payment as to part and tender as to residue...
364
Form 179 Want of capacityAlien enemy 609 Form 180 Want of capacityAssignment
365
Form 181 Want of capacityDenial of plaintiffs corporation 611 Form 182 Want of capacityDenial of trusteeship 612 Form 183 Denial of subscriptio...
366
SummonsReturn and Proof of Service 10911099366
367
Appearance 11011104
368
Lis Pendens 11051123 369379
369
Form 194 Want of jurisdiction of the person 624 Form 195 The sameBy foreign corporation 625 Form 196 Want of jurisdiction of the subject
370
CHAPTER XXV
371
Distinction between counterclaim and crosscomplaints 627 Essential features of the counterclaim
372
Must be an existing claim
373
Assignment of ground of claim
374
Mutuality of demands
375
Unliquidated demands
376
Equitable defenses and setoff
377
Same transaction
378
Issues 11241129
380
Tort as subject of counterclaim
381
Contracts and torts
383
Construction of statute
384
Counterclaims arising upon contract
385
Jurisdiction
386
Necessity to plead
387
Form of pleading
388
Designation of pleading 643 Answer or demurrer
390
Counterclaim
391
Form 198 Defenses and counterclaims pleaded together 646 Form 199 Plaintiffs reply 647 Form 200 Counterclaim by way of setoff against plaintiffs...
392
Form 201 Another action pending 649 Form 202 Counterclaim for breach of warranty
393
Form 203 Equitable counterclaim for specific performance
394
Form 204 Counterclaim for breach of warranty 652 Form 205 Payment in part and deficiency in the goods exceed ing the balance with counterclaim...
395
Form 206 Statement admitting counterclaim
396
CrossComplaint
397
Against whom relief may be sought
398
Trial by Jury 11961287 399412
399
Dismissal of complaint 658 Allegations
401
Filing and service
403
FORMS OF CROSSCOMPLAINT 660 Form 207 By defendant outline form 661 Form 208 Crosscomplaint for divorce for plaintiffs adultery 662 Fo...
404
Several Defenses
405
What answer waives
406
Crosscomplaint and counterclaim 667 In an action for conversion
407
Commencement and conclusion 669 Each defense must be complete
408
Joint answer 671 Must be consistent
409
Inconsistent defenses
410
Prayer in answer 674 Separate answer 675 Several defenses FORUS SEVERAL DEFENSES
411
Form 210 Demurrer and answer 677 Form 211 Several defenses and a counterclaim
412
Trial by Referee 12881344 413441
413
DefensesAffidavit of Merits
414
Time to answer
417
INTERVENTION INTERPLEADER ETC Section 681 Intervention
419
Petition 683 Appeal 684 Assignees
420
Attachment suits
421
Dismissal 687 Ejectment 688 Foreclosure
422
Interest of parties 690 Mechanics lien
423
Nonsuit 692 Ordering in necessary parties
424
Specific performance 694 Sureties
425
Tax 696 Who may intervene 697 InterventionMiscellaneous casesPleading
426
Interpleader
428
FORMS OF INTERVENTION AND INTERPLEADER 699 Form 213 Commencement of complaint by intervener 700 Form 214 Order allowing inte...
429
Form 215 Order to bring in necessary parties without motion 702 Form 216 Affidavit in action to recover money
430
Form 217 Affidavit where action is brought to recover specific personal property 704 Form 218 Notice of motion to allow party to interplead
431
Form 219 Order of interpleader 706 Form 220 Petition by landlord to be made defendant in action of ejectment
432
Form 221 Notice of motion to make party defendant 708 Form 222 Order making third person a party defendant
433
Form 223 Petition for intervention by third person whose prop erty is attached 710 Form 224 Petition for intervention in replevin
434
Form 225 Petition by owner of chattels to intervene in replevin 712 Form 226 Order to show cause why petition for intervention should not be grant...
435
Form 227 Petition of intervening creditor to set aside prior attachment
436
Form 228 Order of hearing of said petition 715 Form 229 Order vacating attachment
437
Form 230 Order awarding issues on said petition 717 Form 231 Garnishees answer by way of interpleader
438
Form 232 To obtain interpleader in equity
439
Form 233 Affidavit by defendant for interpleader of third per son in action of replevin
440
Form 234 The same where the third party claims a part only of the property 721 Form 235 Order of interpleader
441
Exceptions 13451360
442
FORMS IN REPLICATION
457
Form 240 Special denial 766 Form 241 Reply interposing both denial and new matter 767 Form 242 Reply of statute of limitations 768 Form 243 D...
458
Form 245 Order for judgment for want of reply
459
Form 246 Judgment thereon 772 Form 247 Order compelling reply
460
Supplemental Pleadings
461
Judgment by Default 14091446 463467
463
Effect of special pleas
464
Contempt of Court
465
Joinder of defenses
466
Denial on information and belief
467
Amendments
468
Judgment by Confession 14581474 469
469
The sameJudgment
470
Judgment on Dismissal and Nonsuit 14751493
471
Vacating Judgment 15351545 472
472
Form of denial for want of information or belief
473
New Trial in General 15461552
474
Form 130 Denial on information and belief
475
Form 131 Denial of knowledge sufficient to form a belief
476
Manner of amending 793 Amendments at trial
478
Amendments at trialContinued
480
Amendment to conform to proofs 796 Amendments after trial
482
Appeal from the Superior Courts to the Supreme Court Dup 16751740
484
Answer to the merits
485
Amendment of judgment or record
486
Appeal from the Superior Courts to the Supreme Court in Probate and Other Proceedings 17411746
487
Attachment
488
Amendment of complaint
489
The sameEffect of amended complaint 801 The same In particular actions
491
The sameObjection to original complaint 803 The sameTime to answer 804 Verification of complaint
492
Perfecting an Appeal 17471802 493501
493
AbatementDeath before argument
498
AbatementDeath after verdict
499
AbatementDeath before or after judgment
500
Death pending supplementary proceedings
501
Statement on Appeal 18031822
502
AbatementParty civilly dead
503
AbatementSuggestion of death
504
Substitution of party and revivor
505
Transcript on Appeal 18451867 506
506
Dismissal of suit
507
Former judgment
508
Former judgmentEssential allegations
509
Former judgmentParties
510
Foreign adjudicationEssential allegations
511
Former judgmentOffer of testimony
512
Former judgmentWhen a
513
Former judgmentWhen not a
514
Former judgmentWhen an estoppel
515
Fraudulent misrepresentations
516
FraudEssential allegations
517
Wife as plaintiffEffect of divorce
518
Enlarging Time to Plead
519
Arbitration and award
520
Wifes separate estate
521
Husband and wifeImpotence
522
FORMS FOR ENLARGING TIME TO PLEAD 869 Form 266 Affidavit for extension of time to plead pending delivery of copy of account 870 For...
523
Form 268 Notice of motion for extension of time to answer
524
Form 269 Afidavit on motion to enlarge time to plead 873 Form 270 Order enlarging time to plead
525
Notices Affidavits and Orders in General
526
The true practice
527
Hearing and Briefs 18681885
537
Errors Considered on Appeal 18861916
538
OrdersOrder made during vacation 903 The samePresumption in favor of 904 The sameEntry of in minutes 905 Title of action 906 Transfer of moti...
539
Execution 20312117 530554
540
Costs security ofFrom whom required
541
FORMS OF NOTICES OF MOTIONS AFFIDAVITS ETC 912 Form 271 Form of notice 913 Form 272 Affidavit denying genuineness and due exec...
542
Form 274 Order allowing party to enter for survey 916 Form 275 Notice requiring security for costs
543
Form 276 Notice of application to perpetuate testimony 918 Form 277 Notice of perpetuation of testimony as against all persons to be given by com...
544
Form 278 Allegation of waiver of demand and notice before or at maturity 920 Form 279 Notice of acceptance of order to allow judgment 921 For...
545
Form 281 Judgment thereon 923 Form 282 Notice of acceptance of offer to liquidate damages 924 Form 283 Judgment after trial of appeal from aw...
546
Form 284 Notice of application for additional security
547
Form 285 Order on application for guardian ad litem
548
Form 286 Notice of hearing or trial by party 928 Form 287 Notice of bona fide purchaser
549
Form 288 Notice of ownership of attached property by third person 930 Form 289 Notice of taxation of costs accompanying bill 931 Form 290 Noti...
550
Form 291 Waiver of notice of subsequent proceedings 933 Form 292 Notice for special purpose only 934 Form 293 The same with motion to set asi...
551
Form 294 Notice of motion by plaintiff for judgment on the pleadings 936 Form 295 Notice of motion for dismissal
552
Form 296 Notice of motion to sue on judgment in the same court 938 Form 297 Notice of motion on petition for leave to sue a receiver 939 Form 2...
553
Form 299 Order granting leave to bring action upon the bond of an executor administrator or testamentary trustee 941 Form 300 Notice of motion o...
554
Proceedings Supplementary to Execution 21182147 555570
555
Form 303 Affidavit for same 945 Form 304 Order requiring election
556
Form 305 Notice of motion to strike out answer 947 Form 306 Affidavit to falsity of answer
557
Form 307 Corroborative affidavit 949 Form 308 Order thereon 950 Form 309 Notice of motion to strike out irrelevant redundant or scandalous matt...
558
Form 310 Notice of motion to substitute officers successor
559
Form 312 Order thereon 954 Form 313 Notice of motion by plaintiff to revive action against personal representatives of deceased defendaut 955 For...
560
Form 315 Order thereon AFFIDAVITS IN ACTIONS 957 Form 316 Formal parts of affidavit
561
Form 317 The same by two or more affiants 959 Form 318 Affidavit on which to move for security of costs 960 Form 319 Affidavit to obtain securi...
562
Form 320 Afidavit for security when plaintiff or sureties be come nonresident after action brought 962 Form 321 Affidavit to obtain stay of proceedi...
563
Form 322 Order staying proceedings on foregoing affidavit 964 Form 323 Order allowing amended pleading
564
Form 324 Order for inspection and copies
565
Form 325 Order to furnish bill of particulars 967 Form 326 Order for further bill of particulars
566
Jurisdiction
567
Form 139 Bankruptcy
568
Limited jurisdictionProbate 971 Limited jurisdiction
569
Creditors Suits 21482225 571595
571
real property
580
Venue
582
Power of court
592
Grounds for change
593
for change
594
Demand for change
595
613
596
Affidavit of merits
597
Contents of affidavit stating grounds
598
Affidavit on ground of disqualification of judge 998 Affidavit resisting motion for change
600
Hearing of motion
601
Effect of motion on courts power 1001 Mandamus to compel hearing 1002 Appeal from order
603
FORMS FOR CHANGE OF VENUE 1003 Form 327 Demand for change 1004 Form 328 Consent to change
604
Form 329 Demand for change by defendants attorney com bined with notice of retainer 1006 Form 330 Notice of motion for change 1007 Form 33...
605
Form 332 Statement of groundnot the proper county from situation of subjectmatter 1009 Form 333 The sameNot the county where cause of action ...
606
Form 334 Affidavit on the ground of nonresidence 1011 Form 335 Affidavit on ground of partiality and prejudice 1012 Form 336 Affidavit on acc...
607
Form 337 Affidavit on the ground of disqualification of the judge 1014 Form 338 Affidavit resisting motion for change
608
Form 339 Order to show cause with stay of proceedings 1016 Form 340 Order changing venue on judges own motion 1017 Form 341 Order denyin...
609
Form 342 Order granting change of place of trial 1019 Form 343 Order to transfer cause to another court on account of disability of judge
610
Removal of Causes to Federal Court
611
Right of removal 1023 Party entitled to removal
612
Discovery or Inspection of Books Docu ments etc 22772295 614
614
What causes are removable
615
Items of Account 22962308 616620
616
Removal where federal question involved
617
Right of removalHow determined
619
Waiver of right to remove 1029 Petition for removal
620
Arbitration and Award 23092344 621637
621
Petitions When to be made
622
Notice of application 1033 Bond and order
623
FORMS FOR CHANGE TO FEDERAL COURT 1034 Form 344 Entry of appearance 1035 Form 345 Petition for transfer from state court to a circuit...
624
Form 346 The sameOn ground of prejudice or local influence under act of 1887
625
Form 347 Affidavit of prejudice or local influence to accompany the foregoing petition 1038 Form 348 Bond on removal under act of 1887
626
Form 349 Petition for removal on ground of citizenship under act of 1887
627
Form 350 The same 1041 Form 351 Notice of motion for removal
628
Form 352 Order to show cause 1043 Form 353 Order for removal of cause to United States court
629
Form 354 Writ of certiorari under section 7 of the act of March 3 1875
630
Summons
631
Requisites of the writ
632
Notice to appear
634
In action on contract for money or damages
635
Time for appearance
636
Amendment of summons
637
Compromise 23452349
638
Submitting Controversy 23502357 639644
639
Action in justices court 1054 Justices courtService of summons
640
Alias or additional writs
641
Service of summons
643
Mode of service in general 1058 Redelivery and service after return 1059 Service by sheriff effect
644
Service by deputy 1061 On a minor 1062 On corporations
646
On partners 1064 Abuse of process 1065 Service by whom made 1066 Husband and wife defendants
647
Personal serviceMode
648
Time for service 1069 Substituted service
651
FORMS OF SUMMONS 1070 Form 355 Summons in action on contract for payment of money only
652
Form 356 The sameSummons in justices court
653
Form 357 Summons in action to foreclose mortgage
654
CHAPTER XL
655
Affidavit for order
657
Amendment of affidavit 1076 Order for publication
659
Mailing copy to defendant
661
Sufficiency of publication
662
Time to appear
664
Proof of publicationBy whom made and what to contain 1081 Service by publication when conclusive
665
FORMS FOR PUBLICATION OF SUMMONS 1082 Form 358 Affidavit for publication of summons
666
Form 359 Order for publication of summons
667
Form 360 Affidavit of publication
668
Form 361 Affidavit of service by mail of summons and copy of complaint
669
CHAPTER XLI
670
Form and sufficiency of return
671
Amendments of summons and return
674
Defects in summons
675
Construction and operation of return
676
Conclusiveness or return or certificate 1092 Evidence and presumptions
677
Acknowledgment of service
678
FORMS FOR PROOF OF SERVICE Section 1094 Form 362 Return of sheriff on summonsGeneral form 1095 Form 363 Where one defendant was n...
679
Form 365 Affidavit of service of summonsAnother form 1098 Form 366 Admission of due service 1099 Form 367 Simple admission not conceding ...
680
CHAPTER XLII
681
Appearance by attorney
683
Authority of attorney
684
Form 368 Notice of appearance
686
CHAPTER XLIII
687
Operation and effect of notice
688
Necessity for filing
690
Actions and property to which statute is applicable
691
New notice necessary when 1111 Diligence in prosecution required
692
Effect of dismissal FORMS OF LIS PEN NS 1113 Form 369 In an action to foreclose a mechanics lien
693
Form 370 In an action to establish a trust 1115 Form 371 In an action for specific performance 1116 Form 372 Notice of pendency of action of eject...
694
Form 373 Lis pendens in an action in which a warrant of attachment affecting real property has been issued S Dakota 1118 Form 374 Notice of suit ...
695
Form 375 NoticeForeclosureTendency of action 1120 Form 376 Notice of suit in partition 1121 Form 377 Notice of pendency of action to quiet title
696
Form 378 Complaint for maliciously filing a lis pendens
697
Form 379 In application for laying out widening vacating or extending street alley waterchannel park bighway or other public place
698
CHAPTER XLIV
699
Issues of
700
Issues of fact
704
Mixed issues of law and fact
710
Special issues
711
CHAPTER XLV
712
Notice of trial
713
Continuance
715
Contents of affidavit
717
Continuance when refused
718
Election contests 1137 Grounds for continuance
719
REPLICATION Section 723 In general
720
Insufficient statement
721
Stipulation for continuance 1141 Preventing a continuance
722
Waiver of rights 1143 Costs
723
Necessity for replication
724
Chancery practice
725
Conclusion
726
Counterclaim of defendant
727
Form
728
When not permitted
729
Sufficient reply
730
Departure from complaint
731
Practice in California
732
Performance
733
To plea in
734
To plea in avoidance
735
To plea of former recovery
736
To plea of fraud
737
To plea of judgment
738
To plea of justification
739
To plea of payment
740
To plea of performance
741
To a plea of privilege by an attorney
742
To a plea of usury
743
Facts must be alleged
744
Facts must be traversed
745
Fraud as a reply
746
Insufficient reply
747
Promissory note
748
ReplyWhen unnecessary
749
ReplySufficiency
750
ReplyTime of filing
751
RejoinderIts office
752
Breach of agreemento
753
Conversion
754
Demurrer to reply
755
Departure
756
Duplicity
757
Goods sold
758
Insurance policy
759
Obstructing highway
760
Withdrawal and substitution of plea
761
Challenge to juror
762
Grounds of challenge
763
Challenge how tried
765
Jury sworn
766
Evidence adduced 1204a Matters of judicial notice
767
Privileged communicationsAttorney and client
768
Husband and wife 1207 Physician
770
Priest 1209 Public officer 1210 Witnesses in general 1211 Who may be witnesses
771
Children 1213 Parties to suits
772
Partner surviving
773
When allowed
774
After reversal
775
Discharge of debt
776
Foreclosure
777
Judgment
778
Parties changed
779
Title acquired
780
Title lost
781
Answer to supplemental pleading
782
Amendment
783
Effect of supplemental pleading
784
In general 786 Amendment of process
786
Amendment of pleadings
787
Changing form of action
788
When allowable
789
Amendments of course
790
Amendment by leave of courte
791
Misleading and erroneous instructions
792
Instructions refused
794
Refusal of instructionsContinued
796
InstructionsHow construed 1242 The sameModification or amendment
798
The samePresumptions 1244 The sameDuty of jury to follow
799
The sameError when cured 1246 Conduct of the jury
800
Misconduct of jury
802
View of property or premises by jury 1249 Withdrawal of case from jury
803
1249a Excusing juror 1250 Fees of jury 1251 Amendment of verdict
804
Chance verdict
805
Amendment of demurrer
806
AmendmentRelief against mistake
807
Amendment of affidavit
808
Amendment on appeal from justices court
809
Practice on amendments
810
The sameContinued
811
Right to answer amended pleadings
812
Presentation of claim 315 Quo warranto
813
Statement in motion
814
Irrelevant pleading defined
815
Amendment of undertaking
816
What may be stricken
817
Election between counts
818
Statement in motion
819
Costbill
820
Ambiguous answer
821
Answer with denials only
822
Tardy answer Discretion of court
823
Informal answers
824
Proceedings on motion to strike
825
Sham answers defined
826
Sham defense how tested
827
Sham answers may be stricken
828
Unverified answers
829
What may be sticken out of answer
830
When motion should be made
831
Order not appealable
832
Mistakes in names how corrected
833
Adding or striking out parties
834
Discretion
835
Motion when made
836
Special cases
837
Striking out parties
838
Striking out demurrerGrounds
839
ComplaintStriking out evidentiary matter
840
Striking outMiscellaneous points of practice
841
May be set aside
842
FORMS IN TRIAL BY REFEREE 1316 Form 413 Affidavit by defendant to move for reference of an action involving a long account 1317 Form 4...
843
Form 415 Affidavit to oppose motion denying account 1319 Form 416 Affidavit to oppose motion where fraud is set
844
Form 418 Stipulation to refer 1322 Form 419 Order referring the cause without motion
845
Form 420 Order of reference to take an account as to damages 1324 Form 421 Order of reference to take an account between par ties to a mortgage i...
846
Form 422 Order of reference for accounting in partnership cause 1326 Form 423 Order of reference to determine priority among creditors
847
Form 424 Order of reference to take all testimony and report to the court 1328 Form 425 Plaintiffs account to be presented on reference
848
Form 426 Order that books and papers be deposited with ref eree before accounting
849
Form 427 Oath of referee 1331 Form 428 Appointment of first meeting by referee 1332 Form 429 Notice of hearing or trial by party 1333 Form 43...
850
Form 431 Report of referee 1335 Form 432 Referees report on accounting in partnership cause
852
Form 433 Referees report as to priority of creditors
853
Form 434 Notice of motion for reference to obtain surplus moneys on foreclosure sale
854
Form 435 Order of reference of claims to surplus moneys 1339 Form 436 Referees report thereon
855
Form 437 Notice of filing report of referee 1341 Form 438 Exceptions to report 1342 Form 439 Motion for further report
856
Form 440 Motion to set aside report and for a new trial 1344 Form 441 Order confirming setting aside or amending ref erees report
857
CHAPTER XLIX
859
Error in
862
Exceptions to evidenceAdmission of evidence 1348 Documentary evidence
864
Irrelevant testimony 1350 Insufficiency of evidence 1351 Proving exceptions
865
Special exception necessary 1353 When exception lies 1354 ExceptionsRelative to matters of evidenceGenerally
866
Exceptions to findingsDefective findings
867
Form time for filing
868
Exceptions to instructionsException must be taken
869
Must be specific
870
CHAPTER L
872
Final judgment
875
Judgment must follow allegations and proofs
876
Joint and several judgment
877
Entering judgment
878
Judgment nunc pro tunc
879
The sameContinued
880
Judgmentroll 1370 Judgmentroll what constitutes
883
Docketing judgment
885
Entry by clerk
886
Goldcoin judgment 1374 Costs and interest in gold coin
887
Ejectment 1376 Goods sold 1377 Lien of judgment
888
Priorities of judgments
890
Extinguishment of lien
891
Effect of judgment lienDeath of party to judgment 1381 Equitable liens 1382 Extension of lien
892
Property subject to the lien
893
Release of lien 1385 Satisfaction of judgmentBy levy under execution 1386 Satisfaction by part payment
894
Revival of judgment
895
FORMS OF JUDGMENTS 1388 Form 442 Judgment by the court
896
Form 443 Judgment of absolute divorce in wifes favor 1390 Form 444 Interlocutory decree of divorce
897
Form 445 Decree of foreclosure and sale
898
Form 446 Judgment enjoining maintenance of dam 1393 Form 447 Decree in actions to quiet title
901
Form 448 Judgment on verdict 1395 Form 449 Judgment for double or treble damages
902
Form 450 Judgment for specific performance of land contract agaiņst vendorShort form 1397 Form 451 Interlocutory judgment denying specific pe...
903
Form 452 Judgment of strict foreclosure against junior incum brancer who was not a party to original fore closure action 1399 Form 453 Judgment ...
904
Form 454 Judgment annulling corporation for violation of its charter
905
Form 455 Judgment of reformation of a deed on ground of mistake
906
Form 456 Judgment of contribution between sureties 1403 Form 457 Judgment adopting advisory verdict of jury and reversing judgment of county ...
907
Form 459 Judgment in action to enforce lien on logs or timber after jury trial 1406 Form 460 Judgment dismissing appeal from justice court for failu...
908
Form 461 Judgment on appeal from justice court after trial de novo 1408 Form 462 Satisfaction of judgment
909
CHAPTER LI
910
Order of court required
911
Process to sustain default judgment 1413 Pleadings to sustain default judgment
912
Proof required on default 1415 Against whom entered
913
Default against one not personally served 1417 Effect of 1418 Entry
914
Clerks duty 1420 Errors how reviewed
915
Proof when required 1422 Relief granted
916
Waiver of default 1424 When to be entered
917
Setting aside judgment grounds of 1426 California procedure
918
Form of motion to set aside default 1428 Jurisdiction 1429 Motion when to be made
919
Parties not concluded by the record
921
Motion will be refused
922
On terms 1436 AffidavitBy whom made
923
Counteraffidavits
924
Default by fraud 1439 Diligence must be shown 1440 Form of affidavit and notice
925
Excuse for default
926
FORMS IN JUDGMENT BY DEFAULT 1442 Form 463 Judgment by defaultEntry of default by clerk 1443 Form 464 Judgment by default
928
Form 465 Judgment against joint debtor not originally served 1445 Form 466 Notice of motion to set aside a judgment by default
929
Form 467 Affidavit to set aside judgment by default
930
CHAPTER LII
931
Denial
932
Two causes of action 1451 Demurrer must be disposed of 1452 Discretion
933
Admission in answer 1454 Frivolous answer
934
Election
935
Verified answer 1457 Form 468 Notice of motion for judgment on the pleadings
936
CHAPTER LIII
937
Who may confess judgment 1460 Confession by attorney 1461 Collateral attack
938
Insufficient statements
939
Joint debtor 1464 Judgment creditor proceedings by 1465 On award 1466 Promissory note 1467 Setting aside confessions
940
Several judgments
941
Void judgments 1471 Judgment by confessionMiscellaneous
942
Judgment by consent FORMS OF JUDGMENT BY CONFESSION 1473 Form 469 Statement and confession of judgment
943
Form 470 Judgment by confession in open court
944
CHAPTER LIV
945
A dismissal 1477 Dismissal by consent 1478 Dismissal by the court
946
Rights of interveners
947
By plaintiff
948
Dismissal of actionContinued 1482 Dismissal effect
949
The sameContinued
950
Ejectment 1485 Judgment on nonsuit 1486 NonsuitNature
951
Form 311 Affidavit therefor
952
When and when not granted
953
Effect of motion for nonsuit
954
NonsuitMiscellaneous 1491 The sameRelief against stipulation 1492 The samePayment of jury 1493 The sameReview on appeal
956
CHAPTER LV
958
Attorneys fees 1497 Retaxing costs
959
Costs when allowedAllowance when discretionary
960
In particular casesClaim and delivery 1500 Clerks duty 1501 Costs are part of judgment 1502 Ejectment 1503 In partition
961
In equity 1505 Injunction 1506 Money or damages
962
On appeal 1508 On judgment affirmed in part and reversed in part
963
On new trial awarded 1510 On judgment reversed
964
On remittitur 1512 Right of use of water 1513 CostsIn particular cases
965
The sameSecurity
966
The same Vacating judgment for 1516 Form 471 Memorandum of costs and disbursements
967
CHAPTER LVI
968
Res adjudicata
970
Stare decisisLaw of case
971
Powers of courts at chambers
972
Concurrent jurisdiction
973
Appellate jurisdiction
974
Jurisdiction of state courts
975
Extraterritorial jurisdiction of state courts
976
Jurisdiction determined by amount in controversy
977
In justices courts
978
Justice courtPresumption of jurisdiction
979
Justice courtActions affecting real property
980
Justice courtAmount in controversy
981
JudgmentsImpeachmentRelief against 1539 Erroneous judgmentRemedy 1540 Vacating or setting aside
982
Definition of terms 983 Venue dependent upon location of subjectmatter
983
Transitory actions
984
Actions affecting lands
985
Actions against counties
986
Place where cause of action arose
987
Residence of defendants as determining venue
988
Waiver of objections
989
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Page 701 - In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code.
Page 52 - In case of the death, or other disability, of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.
Page 875 - Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.
Page 590 - When the convenience of witnesses and the ends of justice would be promoted by the change.
Page 769 - All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded...
Page 921 - ... upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect...
Page 164 - That the court has no jurisdiction of the person of the defendant or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4.
Page 369 - A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action ; 2.
Page 426 - ... notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order.
Page 587 - A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the Court to change the place of trial as in other cases.

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