attach substance of. of any other county, and must require him to attach Writ of and safely keep all the property of the defendant ment, within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, unless the defendant Officer may give him security, by the undertaking of two sufficient undertaksureties, in an amount sufficient to satisfy such demand of levying. besides costs; in which case, to take such undertaking. take an ing instead provisions attach Justices' 869. (§ 555.) The sections of this Code from Sec- Certain tion 541 to Section 559, both inclusive, are applicable apply to all to attachments issued in Justices' Courts, the word mentin "Constable" being substituted for the word "Sheriff," whenever the writ is directed to a Constable, and the word "Justice" being substituted for the word "Judge." NOTE.-See notes to Secs. 541-559, ante, inclusive. ARTICLE III. CLAIM AND DELIVERY OF PERSONAL PROPERTY. SECTION 870. How claim and delivery enforced. and enforced. 870. In an action to recover possession of personal How claim property, the plaintiff may, at the time of issuing delivery summons or at any time thereafter before answer, claim the delivery of such property to him; and the sections of this Code from Section 510 to Section 521, both inclusive, are applicable to such claim when made in Justices' Courts, the powers therein given and duties imposed on Sheriff's being extended to Constables, and the word "Justice" substituted for "Judge." NOTE.-See notes to Secs. 510-521, ante, inclusive. Amended 1875=6. Judgment when defendant fails to appear. Judgment on demurrer. CHAPTER V. JUDGMENT BY DEFAULT IN JUSTICES COURTS. SECTION 871. Judgment when defendant fails to appear. 871. When the defendant fails to appear and answer 1. If the action is based upon a contract, and is for the recovery of money or damages only, the Court must render judgment in favor of plaintiff for the sum specified in the summons; 2. In all other actions the Court must hear the evi- NOTE.-See note to Sec. 890, post; O'Connor vs. 872. In the following cases the same proceedings must be had, and judgment must be rendered in like 1. If the complaint has been amended, and the de- 2. If the demurrer to the complaint is overruled, and the defendant fails to answer at once; 3. If the demurrer to the answer is sustained, and the defendant fails to amend the answer within the time allowed by the Court. NOTE.-See Secs. 851-860, inclusive, ante, and notes. 1 Amended 1895-61 CODE OF CIVIL PROCEDUre. CHAPTER VI. TIME OF TRIAL AND POSTPONEMENTS IN JUSTICES' COURTS. SECTION 873. Time when trial must be commenced. 874. When Court may, of its own motion, postpone trial. 875. Postponement by consent. 876. Postponement upon application of a party. 877. No continuance for more than ten days to be granted, 873. Unless postponed as provided in this Chap- 717 Time when trial must be com menced. 874. The Court may, of its own motion, postpone When the trial: Court may, trial. 1. For not exceeding one day, if, at the time fixed postpone by law or by an order of the Court for the trial, the Court is engaged in the trial of another action; 2. For not exceeding two days, if, by an amendment of the pleadings, or the allowance of time to make such amendment or to plead, a postponement is rendered necessary; 3. For not exceeding three days, if the trial is upon issues of fact, and a jury has been demanded. NOTE.-See Secs. 833, 859, and 876, ante. ment by 875. The Court may, by consent of the parties, Postponegiven in writing or in open Court, postpone the trial consent. to a time agreed upon by the parties. NOTE.-See Secs. 833, 859, and 876, ante. 876. The trial may be postponed upon the application of either party, for a period not exceeding four months: Postpone ment upon of a party. Same. 1. The party making the application must prove, by his own oath or otherwise, that he cannot, for want of material testimony, which he expects to procure, safely proceed to trial, and must show in what respect the testimony expected is material, and that he has used due diligence to procure it, and has been unable to do so; 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the defendant is subject to arrest on execution, in the same manner as if he had not been discharged; 3. If the application is on the part of a defendant under arrest, before it can be granted he must execute an undertaking, with two or more sufficient sureties, to be approved by, and in a sum to be fixed by, the Justice, to the effect that he will render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. On filing the undertak ing specified in this subdivision, the Justice must order the defendant to be discharged from custody; 4. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposition before the Justice, and that the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witness was produced; -But the Court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. NOTE.-See Secs. 833 and 859, ante. 877. (§ 585.) No adjournment must, unless by consent, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the Justice, with two sureties, to be approved by the Justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking. CHAPTER VII. TRIALS IN JUSTICES' COURts. SECTION 878. Issue defined and the different kinds. 879. Issue of law, how raised. 880. Issue of fact, how raised. 881. Issue of law, how tried. 882. Issue of fact, how tried. 883. Jury, how waived. 884. Either party failing to appear, trial may proceed at re quest of other party. 885. Challenges to jurors. 886. Manner of pleading a written instrument. 887. If a copy of an instrument be filed, the signatures will 878. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds : Issue defined, and the different kinds. 1. Of law; and, 2. Of fact. 879. An issue of law arises upon a demurrer to the Issue of complaint or answer, or to some part thereof. law, how raised. |