may issue within a 840. (§ 538.) The Court must indorse on the Summons complaint the date upon which it was filed, and at any time within one year thereafter the plaintiff may have summons issued. year. may waive 841. At any time after the complaint is filed the Defendant defendant may, in writing, or by appearing and plead- summons. ing, waive the issuing of summons. may appear in 842. (§ 534.) Parties in Justices' Courts may Parties appear and act in person or by attorney; and any person, except the Constable by whom the summons or jury process was served, may act as attorney. person or 843. ($539.) When a guardian is necessary, he When must be appointed by the Justice, as follows: 1. If the infant is plaintiff, the appointment must be made before the summons is issued, upon the ap-. plication of the infant, if he is 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 to act as such, and to be responsible for costs if he fail in the action, must be first filed with the Justice; 2. If the infant is defendant, the guardian must be appointed at the time the summons is returned, or before the pleadings. It is the right of the infant to nominate his own guardian, if the infant is over fourteen years of age, and the proposed guardian is present and consent in writing to be appointed. Otherwise, the Justice may appoint any suitable person who gives such consent. 844. (§ 540.) The summons must be directed to the defendant and signed by the Justice, and must contain: 1. The title of the Court, name of the county and city, or township, in which the action is commenced, and the names of the parties thereto; 89-VOL. I. guardian Summons, and what Amended 1875= 6. Same. Time for 2. A sufficient statement of the cause of action, in general terms, to apprise the defendant of the nature of the claim against him; 3. A direction that the defendant appear and answer before the Justice, at his office, at a time specified in the summons; 4. In an action arising on a contract, for the recov ery of money or damages only, a notice that unless the defendant so appears and answers the plaintiff will take judgment for the sum claimed by him (stating it); 5. In other actions, a notice that unless defendant so appears and answers the plaintiff will apply to the Court for the relief demanded. If the plaintiff has appeared by attorney, the name of the attorney must be indorsed on the summons. 845. The time specified in the summons for the defendant, appearance of the defendant must be as follows: 1. If an order of arrest is indorsed upon the summons, forthwith: ༡ Aner ded-18.73.-4. 1875= Alias summons. 2. In all other cases, not less than three nor more than twelve days from its date. NOTE. This substitutes a plain and simple rule as to the return day of the summons. Under the old practice, the rules relating thereto were exceedingly difficult of application. The Justice may, within the limits fixed by the rule, determine from the peculiar circumstances attending each case the proper return day. For decisions rendered under the old practice, as to service of summons, see Deidesheimer vs. Brown, 8 Cal., p. 339; Seaver vs. Fitzgerald, 23 Cal., p. 85; Hister vs. Carr, 34 Cal., p. 641. See Secs. 412 and 413, ante, and notes. Secs. 405 to 416, inclusive, and the notes thereto, are applicable to Justices' Courts, so far as relates to the service and return of the summons. 846. If the summons is returned without being served upon any or all of the defendants, the Justice, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original, except that he may fix the time for the appearance of the defendant at a period not to exceed ninety days from its date. NOTE. The main object of this section is to enable service to be made by publication, in the mode and manner provided for in Title V, Part II, of this Code. See note to Sec. 845. 847. The Justice may, within a year from the Same. date of the filing of the complaint, issue as many alias summons as may be demanded by the plaintiff. NOTE.-See note to Sec. 845. limitation Aneeded .1875-6. 848. The summons cannot be served within two Summons days of the time. fixed therein for the appearance of upon time the defendant. NOTE.-See note to Sec. 485. of service. by whom and how served and 849. The summons may be served by a Sheriff or Summons, Constable of the county, or by any male resident of the county over twenty-one years of age, not a party to the suit, and must be served and returned as prescribed in Title V, Part II, of this Code; or it may be served by publication; and Sections 413 and 412, so far as they relate to the publication of summons, are made applicable to Justices' Courts, the word "Justice" being substituted for the word "Judge," wherever the latter word occurs. NOTE.-Constables may appoint deputies.-Taylor vs. Brown, 4 Cal., p. 188. See note to Sec. 845, ante. appear 850. The parties are entitled to one hour in which Hour for to appear after the time fixed in the summons, but are ance. not bound to remain longer than that time, unless both parties have appeared, and the Justice being present is engaged in the trial of another cause. Aimended 1875-6 اماة Form of CHAPTER III. PLEADINGS IN JUSTICES' COURTS. SECTION 851. Form of pleadings. 852. Pleadings in Justices' Courts. 853. Complaint defined. 854. When demurrer to complaint may be put in. 855. Answer. 856. If the defendant omits to set up counter claim. 858. Proceedings on demurrer. 859. Amendment of pleadings. 860. Answer or demurrer to amended pleadings. 851. Pleadings in Justices' Courts: 1. Are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended; 2. May, except the complaint, be oral or in writing; 3. Must not be verified, unless otherwise provided in this Title; 4. If in writing, must be filed with the Justice; 5. If oral, an entry of their substance must be made in the docket. NOTE. It is not the policy of the law to confine parties to any nice strictness in pleading before Justices of the Peace; thus, if a party does not demur to some matter of form, but instead thereof goes to trial, it must be considered as cured by the verdict.-Cronise vs. Carghill, 4 Cal., p. 120. Pleading in Justices' Courts must be construed with great liberality; and if the facts stated are sufficient to show the nature of the claim or defense relied upon, nothing further is required. Where it is unnecessary (as in this case) that pleadings should be in writing, it is difficult to lay down any rule for determining their sufficiency. To authorize the reversal of a judgment the defects complained of should be such as were calculated to mislead the adverse party.Stuart vs. Lander, 16 Cal., p. 374; Liening vs. Gould, 13 Cal., p. 599. Where an offense is created by statute and a penalty inflicted, it is necessary that the party seeking a recovery should in general refer to such statute, but this rule does not apply to pleadings in Justices' Courts, which are usually without regard to form.-O'Callaghan vs. Booth, 6 Cal., p. 66; affirmed 852. (§ 570.) The pleadings are: 2. The demurrer to the complaint; 3. The answer by the defendant; 4. The demurrer to the answer. Pleadings in Justices' Courts. defined. 853. The complaint in Justices' Courts is a con- Complaint cise statement, in writing, of the facts constituting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action. is based. NOTE. In action for payment of a note the complaint may consist simply of the note, with the proper indorsement thereon, filed with the Justice.-Hamilton vs. McDonald, 18 Cal., p. 128. 854. The defendant may, at any time before answering, demur to the complaint. 855. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter claim, upon which an action might be brought by the defendant against the plaintiff in a Justice's Court. NOTE.-An answer is sufficient which denies generally the allegations of the complaint. -Sullivan vs. Carey, 17 Cal., p. 80. Even the answer to a verified complaint, in an action in a Justice's Court, need not controvert specifically the material allegations of such complaint. It is sufficient if the answer deny the material allegations, either generally or specifically.-Min When Answer. |