How Actions shall be Commenced, SECTION 1. Actions in justices' courts shall be commenced by filing a copy of the account, note, bill, bond or instrument, upon which the action is brought or a concise statement, in writing, of the cause of action, and the issuance of a summons thereon, within one year after the filing of the same, or by the voluntary appearance and pleadings of the parties, without summons. In the latter case the action shall be deemed commenced at the time of appearance. Pub. Laws 1870, 240. SEC. 2. The cause of action must be filed with the justice before the issuance of the writ to give him jurisdiction of the case, as well where defendant appears and pleads as where he makes default. 4 Eng. 478. SEC. 3. Where it is not filed until after the summons has been issued he can legally take no cognizance of it. 1 Eng. 41, 182, 371, 424. SEC. 4. When a defendant pleads another suit pending between the same parties and for the same cause of action, and it appears that no summons was ever issued upon the complaint and that there was no voluntary appearance on the part of the defendant in such suit, there is no suit pending. 10 Cal. 233. SEC. 5. The certificate of a justice on certiorari, that he delivered the summons in the suit to a constable on a cer tain day, does not show that he had legal evidence before him that the suit was commenced on that day; such delivery is no part of his official duty, and he cannot take notice thereof without evidence. 3 Denio, 12. SEC. 6. To authorize a justice to enter an action by agreement of the parties without process, under the act for the trial of small causes, the plaintiff and defendant should appear before the justice to manifest their consent, or some person on behalf of the plaintiff having competent authority verified on oath before the justice. 5 Halst. 302. SEC. 7. Putting in an answer, is an appearance; and such ' an appearance must be held to be a waiver of the mere formality of issuing a summons, the service of which in such case becomes unnecessary. The only purpose of the summons is to bring the defendant into court. It is constantly said by courts when actions are commenced by the service of process, as by capias ad respondendum, that a voluntary appearance waives all defects of process even when objection is taken in the same action. Under our practice, the plaintiff by filing his complaint goes himself into court and although he may not chose to take out a summons he cannot object to the defendant coming in and answering the complaint any more than he could object to the defendant's voluntary appearance after the plaintiff had taken out a summons which he did not choose to serve. Quite as little can the defendant in a collateral action object that there was no action pending after having voluntarily put in an answer to the complaint on file. 21 Cal. 55. How Guardian Appointed. SEC. 8. When a guardian is necessary he shall be appointed by the justice as follows: 1st. If the infant be plaintiff, the appointment shall be made before the summons is issued, upon the application of the infant if he be of the age of fourteen years or upwards; if under that age, upon the application of some relative or friend. The consent, in writing, of the guardian to be appointed, and to be responsible for costs if he fail in the action, shall be first filed with the justice. 2d. If the infant be defendant, the guardian shall be appointed at the time the summons is returned or before the pleadings. It shall be the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent, in writing, to be appointed; otherwise, the justice may appoint any suitable person who gives such consent. Gen. Laws, 5470. SEC. 9. The court has no right to appoint a guardian ad litem until the infant is properly brought into court. 9 Cal. 638. Form of Application of Infant Plaintiff of the Age of Fourteen Years or upwards, for Guardian. SEC. 10. The following is a form of application of infant for guardian: In the justice's court of.... township, in the county of state of .... plaintiff, against To... defendant. one of the justices of the peace of said township: The petition of .... .... respectfully shows: That he desires to bring an action in said court against .... and has filed therein his complaint [or, "copy of the instrument upon which the said action is to be brought,” as the case may be]. That petitioner is an infant of the age of fourteen years [or, if the infant be more than fourteen, add, "and upwards, to wit: of the age of.... . years"], and has no guardian, but has consented to be appointed guardian of petitioner, and has filed his consent, in writing, to be appointed such guardian, and to be responsible for costs if he fail in the said action. ........ Wherefore, petitioner prays that said .... .... be appointed guardian of petitioner for the purpose of appearing for him in said action. [Date.] Form of Application of Relative or Friend of Infant Plaintiff under the age of Fourteen Years, for Appointment of Guardian. SEC. 11. The following is a form of application of relative of infant plaintiff for guardian : In the justice's court of.... township, in the county of To ....... plaintiff, against defendant. ..... state of .... one of the justices of the peace of the said township: of the instrument upon which the said action is to be brought," as the case may be], has been filed in said court. That said ..... is an infant of the age of years and has no guardian, but your petitioner [or, “.... as the case may be], has consented to be appointed guardian of said infant, and has filed his consent in writing to be appointed such guardian, and to be responsible for costs if he fail in the said action. Wherefore, petitioner prays that he [or ".... ...."] be appointed guardian of said infant, for the purpose of appearing for said infant in said action. [Date.] Form of Consent of Guardian to Infant Plaintiff to be Appointed. SEC. 12. The following is a form of consent of guardian to infant plaintiff to be appointed: In the justice's court of.... township, of the county of plaintiff, against defendant. state of .... I hereby consent to be appointed the guardian of .... ...., the infant plaintiff in the above entitled action, and to be responsible for costs if he fail in the said action. [Date.] Form of Nomination of Guardian by Infant Defendant over Fourteen Years of Age. SEC. 13. The following is a form of nomination of guardian by infant defendant over fourteen years of age: In the justice's court of.... township, in the county of...., state of .... ........ The petition of respectfully shows: That he is the defendant in the above entitled action, and the summons in said action has been returned; that he is an infant over the age of fourteen years, to wit: of the age of... years and has no guardian; that a friend of petitioner, is present and has consented to be appointed guardian of petitioner in said action and has filed such consent in writing, and petitioner hereby nominates said .... such guardian. ........ Wherefore, petitioner prays that said ... petitioner, to appear for him in said action. [Date.] be appointed guardian of ...... Form of Consent of Guardian of Infant Defendant to be Appointed. SEC. 14. The following is a form of consent of guardian of infant defendant to be appointed: To.... defendant. J one of the justices of the peace of I hereby consent to be appointed the guardian of defendant in the above entitled action. [Date.] CHAPTER LXVI. EXTENT OF RIGHT, OR CLAIM OF 10-12 WHEN PERFECTION TAKES PLACE 51-54 Legislation on the Subject of Mines. SECTION 1. According to the common law of England, mines of silver and gold are termed "royal mines,” and are the exclusive property of the crown, and although the king grants lands and the mines which are in them, yet royal mines will not pass by so general a description. All mines of gold and silver within the realm, though in the lands of subjects, belong to the crown, and this right is accompanied with full liberty to dig and carry away the ores |