Y., p. 158; see particularly, for correct form, 2 Barbour's Ch., p. 706; and Hill vs. Hoover, 5 Wisc., p. 370; Steinback vs. Leese, 27 Cal., p. 299. But it was held that if there is but one clerk in a printing office he need not be described in the affidavit of publication as “principal" clerk.-See Gray vs. Palmer, 9 Cal., p. 616. And it was held that an objection that the affidavit was made by a publisher and proprietor, and not by the "printer, foreman, or principal clerk," was fully met by Bunce vs. Reed, 16 Barb., p. 347. It was held in that case that for the purposes of the question, printers and publishers might be considered synonymous, the latter being within the spirit of the statute. Sharp vs. Daugney, 33 Cal., p. 513. And so, also, the affidavit of the “proprietor" of a printing office was held sufficient. Proprietor and printer are regarded as synonymous terms.-Quivey vs. Porter, 37 Cal., p. 464. Where the affidavit of the printer was to the effect that publication had been made one month, but the judgment of the Court recites that it was published three months, the recital imparts absolute verity, and it must be presumed that some additional proof had been made to the Court before judgment.-Hahn vs. Kelly, 34 Cal., p. 403. 10. AFFIDAVIT OF DEPOSIT OF SUMMONS IN POST OFFICE. It is not a ground for objection to the affidavit that it does not state that the deposit was made in a United States Post Office, nor that there was communication by mail between the place of deposit and the place to which the package was addressed.-Sharp vs. Daugney, 33 Cal., p. 514. And a copy of summons and complaint must be mailed to a minor under fourteen years of age. A failure to do so cannot be rectified by the appearance of the mother of the child on her own behalf.-Gray vs. Palmer, 9 Cal., p. 616. 11. ADMISSION OF SERVICE BY DEFENDANT.-An admission of service must be in writing, signed by the defendant; an oral admission will not be sufficient.Montgomery vs. Tutt, 11 Cal., p. 307. The place of service need not be stated in the admission. The statute does not require an admission of service to designate the place where the service was made. The object of such designation, when required, is to determine the period within which the answer must be filed, or when default may be taken.-Alderson vs. Bell and Wife, 9 Cal., p. 321; Crane vs. Brannan, 3 Cal., p. 194. And generally, as to admissions of service, see Sharp vs. Brunnings, 35 Cal., p. 533; Crane vs. Brannan, 3 Cal., p. 194. Amended 1873-4: 12. EVIDENCE OF GENUINENESS OF WRITTEN ADMISSIONS OF DEFENDANTS-PROOF OF SIGNATURES.— It is well settled that Courts will take judicial notice of the signatures of their officers, as such, but there is no rule which extends such notice to the signatures of parties to a cause. When, therefore, the proof of service of process consists of the written admissions of defendants, such admissions, to be available in the action, should be accompanied with some evidence of the genuineness of the signatures of the parties. In the absence of such evidence, the Court cannot notice them.Litchfield vs. Burwell, 5 Howard Pr. Rep., p. 346; Alderson vs. Bell, 9 Cal., p. 321. 416. (§ 35.) From the time of the service of the summons and copy of complaint in a civil action, the Court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. The voluntary appearance of a defendant is equivalent to personal service of the summons upon him. NOTE.-1. WHEN THE COURT ACQUIRES JURISDICTION.-In order to give a Court jurisdiction of the subject matter, so as to enable it to issue orders or process, it is necessary that the action should be commenced as prescribed by Sec. 405, ante.-Ex Parte Cohen, 6 Cal., p. 320. 2. APPEARANCE DEFINED.-See Sec. 1014, post. 3. VOLUNTARY APPEARANCE OF DEFENDANT.-The and if that object be attained by the appearance and 4. APPEARANCE BY ATTORNEY.-An appearance When jur isdiction of acquired. Hayes vs. Shattuck, 21 Cal., p. 54; see, also, Carpentier vs. City of Oakland, 30 Cal., p. 439. 5. APPEARANCE BY ATTORNEY-ATTORNEY HAS MANAGEMENT OF CASE.-A party to an action may appear in his own proper person, or by attorney, but he cannot do both. If he appears by attorney he must be heard through him, and such attorney has the management and control of the action.-Board of Commissioners vs. Younger, 29 Cal., p. 149. 6. APPEARANCE BY MISTAKE OF ATTORNEY.— Where an attorney only authorized to appear for a few of several defendants inadvertently files an answer for all, and discovering the mistake obtains an order to withdraw his answer and file a new one limited to the defendants for whom he intended to answer, the Court has jurisdiction only of those defendants for whom the attorney finally appears.-Forbes vs. Hyde, 31 Cal., p. 346. 7. GENUINENESS OF SIGNATURE OF ATTORNEY OF RECORD. If the signature of the attorney of record, and that of an associate attorney is affixed to the pleadings, the Court will not strike it out. The Court will not try the question, whether the signature of the attorney of record was genuine or put there by his associate without his authority.-Wilson vs. Cleaveland, 30 Cal., p. 200. 8. DEFENDANT SERVED WITH PROCESS BUT NOT GIVEN STATUTORY TIME FOR APPEARANCE.-In case that the defendant, although served with process, was not given the time allowed by statute to appear and answer, this would be good reason in the Court below to have quashed the writ upon motion by amicus curiœ, or for extension of time to appear and answer on motion of defendant; it would have been a good objection also on error, arrest of judgment, or motion for a new trial, but the defendant having been summoned to appear on a day certain, it cannot be said that the Court had no jurisdiction of the person, so as to render its judgment a nullity.-Whitwell vs. Barbier, 7 Cal., p. 64. 9. DEFENDANT MUST HAVE BEEN CITED TO APPEAR BEFORE JUDGMENT CAN BE ENTERED AGAINST HIM.— In suits in personam in Courts other than Admiralty Courts, no man can be deprived of his property without having been first personally cited to appear and make his defense, unless by virtue of some positive statutory enactment.-Loring vs. Illsley, 1 Cal., p. 29. 10. JUDGMENT CANNOT BE SUSTAINED IF DEFENDANT WAS NOT SERVED AND DID NOT APPEAR.-See opinion in case of Hawkins vs. Abbott, 40 Cal., p. 640. sue an act concerning sebel and slander Stats 1871-2 533 TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. CHAPTER I. The pleadings in general. III. Demurrer to the complaint. IV. The answer. V. Demurrer to answer. VI. Verification of pleadings. VII. General rules of pleading. VIII. Variance-mistakes in pleadings and CHAPTER I. THE PLEADINGS IN GENERAL. SECTION 420. Definition of pleadings. 421. This Code prescribes the form and rules of pleadings. 422. What pleadings are allowed. of plead 420. (§ 36.) The pleadings are the formal allega- Definition tions by the parties of their respective claims and ings. defenses, for the judgment of the Court. NOTE. As to parties intervening, see Sec. 387, ante. 421. (§ 37.) The forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this Code. NOTE.-Under the Code we have but one system of rules respecting pleadings, which govern all cases, both at law and in equity.-Bowen vs. Aubrey, 22 Cal., p. 569; Payne vs. Treadwell, 16 Cal., p. 243; see, also, Easterly vs. Bassignano, 20 Cal., p. 489; Goodwin vs. Hammond, 13 Cal., p. 169; Riddle vs. Baker, 13 Cal., p. 302; Piercy vs. Sabin, 10 Cal., p. 27. 422. (§ 38.) The only pleadings allowed on the part of the plaintiff are: 40-VOL. I. This Code the form pleadings. prescribes and rules of What pleadings are allowed 1. The complaint; 2. The demurrer to the answer. NOTE. In their report to the Legislature the Commissioners say: "We have been urged to restore the 'reply,' and the arguments in favor of its restoration are convincing. Were we making the law, instead of drafting a bill to be passed upon by the law-making power, we would feel no hesitation whatever as to our course. The 'reply' once formed a part of our system of pleading, and after a short trial it was abandoned. Were we to restore it, we would be met with this fact as an objection. After careful consideration we have determined not to move in the premises. The 'cross complaint' has been omitted, for we think it may be safely said that no member of the profession has ever found any use for it. Nothing can be brought into a case by 'cross complaint' that could not, under our system, be brought in by answer." Complaint, first pleading. Complaint, what to Contain. CHAPTER II. THE COMPLAINT. SECTION 425. Complaint, first pleading. 426. Complaint, what to contain. 427. What causes of action may be joined. 425. The first pleading on the part of the plaintiff is the complaint. 426. (§ 39.) The complaint must contain: 1. The title of the action, the name of the Court and county in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cause of action, in ordinary and concise language; 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated. |