THE CODE OF CIVIL PROCEDURE

OF

CALIFORNIA.

PRELIMINARY PROVISIONS.

SECTION 2. When this Code takes effect.

3. Not retroactive.

4. Rule of construction of this Code.

5. Provisions similar to existing laws, how construed.

6. Tenure of offices preserved.

7. Construction of repeal as to certain officers.

8. Actions, etc., not affected by this Code.

9. Luritacions shall continue to run.

10. Holidays.

11. Same.

12. Computation of time.

13. Certain acts not to be done on holidays.

14. "Seal" defined.

15. Joint authority.

16. Words and phrases.

17. Certain terms used in this Code defined.

18. Statutes, etc., inconsistent with Code repealed.

19. This Act, how cited, enumerated, etc.

20. Judicial remedies defined.

21. Division of judicial remedies.

22. Action defined.

23. Special proceeding defined.

24. Division of actions.

25. Civil actions arise out of obligations or injuries.

26. Obligation defined.

27. Division of injuries.

28. Injuries to property.
29. Injuries to the person.

When this Code takes effect.

Not retroactive.

Rule of construction of Code.

SECTION 30. Civil action, by whom prosecuted.
31. Criminal actions.

32. Civil and criminal remedies not merged.

2. This Code takes effect at twelve o'clock noon, on the first day of January, eighteen hundred and seventy-three.

3. No part of it is retroactive, unless expressly so declared.

NOTE. It is a rule of construction founded on the principles of general jurisprudence that a statute is not to have a retroactive effect beyond the time of its enactment. See the very elaborate and learned opinion of Justice Wells, and also the dissenting opinion of Justice Heydenfeldt, in Thorne et al. vs. San Francisco, 4 Cal., p. 127, and numerous cases there cited. See Civil Code, Sec. 3, and note.

4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.

NOTE. The rules of statutory construction present one of the widest fields of learning known to the lawyer. While it is a general principle that the will of the Legislature, as expressed in a statute, is to be carried into full effect, and that, for the purpose of ascertaining it, every source of information is to be resorted to, such as its title, its preamble, its history, and attendant circumstances, and above all, the evil aimed at and the remedy intended to be applied, it is equally well settled that a more stringent rule was applicable to a certain class of statutes, namely: to those of a penal nature, and those which are, as it was termed, in derogation of the common la... Within this latter category have been classed statutes prescribing the practice of the Courts, in respect to which it was remarked by the Supreme Court of New York (commenting upon provisions in the Practice Code of that State, which is in most respects similar to this Code,) that "the rules and practice of the Court, being established by the Court, may be made to yield to circumstances to promote the

ends of justice. Not so as to a statute; it is unbend-
ing, requiring implicit obedience as well from the
Court as from its suitors."-Jackson vs. Wiseburn, 5
Wend., p. 137. Without stopping to inquire how far
this principle is applicable to statutory provisions pre-
scribing, for example, the time within which a particu-
lar act must be done (which was the case in the instance
referred to), it certainly should not apply in all its
severity to a system of regulation having in view as its
sole object the furtherance of justice and a disregard of
technical strictness. This is the great principle running
through all the provisions of this Code. The chief
design and the merit of the Code, if it has any, is its
attempt to make the attainment of justice the para-
mount object, and the use of forms mere auxiliaries,
which, when they come in conflict with the ends of
justice, are to be relaxed. This section was intended
to obviate much of the difficulty under which Courts
have labored, and to render the Code, instead of a rigid
and unbending statute, as construed by some, a rule of
procedure susceptible of easy adaptation to the purposes
of justice which it alone has in view.-See the opinion
of Justice Cope, Jones vs. Steamship Cortes, 17 Cal.,
p. 487; see, also, Lucas, Turner & Co. vs. Payne &
Dewey, 7 Cal., p. 92; Ward vs. Severance, 7 Cal., p.
126; Chamberlain vs. Bell, 7 Cal., p. 29 see Civil
Code, Sec. 4, and note.

5. The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.

NOTE.-The Political Code contains a general provision that the repeal of existing statutes shall not revive any law heretofore repealed or suspended, nor any office heretofore abolished, and therefore such a provision has not been incorporated herein.-See People vs. Craycroft, 2 Cal., p. 243.

offices

6. All persons who at the time this Code takes Tenure of effect hold office under any of the Acts repealed, con- preserved. tinue to hold the same according to the tenure thereof, except those offices which are not continued by one of the Codes adopted at this session of the Legislature.

Construc

tion of

repeal as to

7. When any office is abolished by the repeal of any Act, and such Act is not in substance reenacted certain

officers.

Actions, etc., not

this Code.

or continued in either of the Codes, such office ceases at the time the Codes take effect.

8. No action or proceeding commenced before this affected by Code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this Code as far as applicable.

Limitations shall continue

to run.

Amended

Holidays.

NOTE. The repeal of a statute conferring rights or prescribing remedies would have the effect to extinguish actions instituted under it, and which were pending when the repeal went into operation, if no provision were made enabling the Court to proceed to try and determine them.-McMinn vs. Bliss, 31 Cal., p. 122. Where an inchoate right accrued under the statutes as they existed previous to the adoption of the Code, and by the Code the proceedings to perfect the right are regulated and prescribed, such regulations and requirements must be pursued, or the party is remediless.See, particularly, People vs. Livingston, 6 Wend., p. 526; Sedgwick on S. and C. Law, p. 679; see Sec. 18, post.

9: When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this Code takes effect, and the same, or any limitation, is prescribed in this Code, the time of limitation continues to run and has the like effect as if the whole period had begun and ended after its adoption. NOTE.-Necessary, because the statutes of limitations for civil actions and proceedings are embodied in this Code.

10. Holidays, within the meaning of this Code, are: every Sunday, the first day of January, the twentysecond day of February, the fourth day of July, the twenty-fifth day of December, every day on which an election is held throughout the State, and every day appointed by the President of the United States, or by the Governor of this State, for a public fast, thanksgiving, or holiday.

11. If the first day of January, the twenty-second Same.

day of February, or the twenty-fifth day of December Amended 1873-4.

falls

upon a Sunday, the Monday following is a holiday.

tion of time

12. The time in which any act provided by law is Computato be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.

NOTE.-Price vs. Whitman, 8 Cal., p. 412; Iron Mountain Company vs. Haight, 39 Cal., p. 540; Soldiers' Voting Bill, 45 N. H., p. 612. A day is not to be considered a unit to the prejudice of the rights of a party, and an examination may be had as to the very point of time when the act was done.-Craig vs. Godfrey, 1 Cal., p. 415; People vs. Campbell, 1 Cal., p. 406.. Whenever time becomes important, Courts will inquire into a day, or even a fractional portion of a day.-People vs. Beatty, 14 Cal., p. 566.

13. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed.

NOTE. Sunday is not regarded.-McGill vs. Bank
United States, 12 Wheaton, p. 511.

Certain

acts not to

be done on

holidays.

defined.

14. When the seal of a Court, public officer, or "Seal"
person is required by law to be affixed to any paper,
the word "seal" includes an impression of such seal
upon the paper alone as well as upon wax or a wafer
affixed thereto.

NOTE.-An impression upon paper constitutes a good
seal.-Connolly vs. Goodwin, 5 Cal., p. 220. There is
"no good reason why such impression should not be
made with a pen as well as with what is technically a
stamp. The object is to give character to the instru-
ment.
This is as well effected by a scrawl
with the word 'seal' within it, or with the initials
'L. S.'"-Hastings vs. Vaughn, 5 Cal., p. 315.

2-VOL. I.

*

*