NOTE.-See Sec. 1005. If a notice is served by mail, the distance which it is required to travel is a fact to be determined by proper evidence.-Neely vs. Naglee, 23 Cal., p. 154. ance. after ap 1014. (§ 523.) A defendant appears in an action Appearwhen he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. After appearance, a Notices defendant or his attorney is entitled to notice of all pearance. subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him unless he is imprisoned for want of bail. 1 NOTE.-1. APPEARANCE IN GENERAL.-If the appearance of parties is shown in general terms by the record, the appearance will be confined to those parties served with process.-Chester vs. Miller, 13 Cal., p. 558. If the defendant appears for the sole purpose of taking advantage of irregular summons by a motion to dismiss, it does not amount to a waiver of his rights so as to cure the defect; and if the motion so made to dismiss is overruled, and defendant answers, it is not such an appearance as waives the irregularity.-Deidesheimer vs. Brown, 8 Cal., p. 339; Gray vs. Hawes, 8 Cal., p. 569. A notice given by an attorney to plaintiff's attorney that defendant will move, before a Court Commissioner, for the dissolution of an attachment, is not an appearance in the action.-Glidden vs. Packard, 28 Cal., p. 649. If the Court orders plaintiff to appear and show cause why a judgment in his favor should not be set aside, and it is not shown that a copy of the order was served on plaintiff or his attorney, or that any notice was given of the time at which the matter was to be heard, the Court must not set aside the judgment.-Vallejo vs. Green, 16 Cal., p. 160. Where a case was transferred, and jurisdiction given to a magistrate, by consent of parties, the appearance of defendant, and his consent fixing the time of trial, were a waiver of his right to be brought in by complaint and summons.-Cronise vs. Carghill, 4 Cal., p. 120. A defendant cannot appear, except by answering, demurring, or giving the plaintiff written notice that he appears; and the service of the notice of appearance must antedate or bear even date with the service of all other papers.-Steinback vs. Leese, 27 Cal., p. 297. Service on non-residents. Where a shall be on such attorney. 2. APPEARANCE BY AN ATTORNEY AT LAW.-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, such attorney must control and manage the case.-Board of Commissioners vs. Younger, 29 Cal., p. 147. The right of an attorney of record to manage and control the action cannot be questioned by the adverse party.-Board of Commissioners vs. Younger, 29 Cal., p. 147. It is presumed that an attorney is authorized to appear for parties for whom he enters an appearance in an action, unless something to the contrary appears.-Hayes vs. Shattuck, 21 Cal., p. 51; Willson vs. Cleveland, 30 Cal., p. 192; Holmes vs. Rogers, 13 Cal., p. 191. And such action will not be reviewed on the ground of mistake, unless the mistake be without any fault or negligence of either the party or his attorney.-Holmes vs. Rogers et al., 13 Cal., p. 191. And the opposing party cannot deny the authority of the attorney so appearing to prosecute the action.-Turner vs. Caruthers, 17 Cal., p. 431. An appearance entered by an attorney, whether authorized or not, is a good and sufficient appearance to bind the party, except in those cases where fraud has been used, or it is shown that the attorney is unable to respond in damages.— Suydam et al. vs. Pitcher et al., 4 Cal., p. 280. Even if the appearance of the attorney was wholly unauthorized, yet if there was no fraud and no allegation of insolvency, the party would not have a right to attack the judgment on that ground.-Holmes vs. Rogers et al., 13 Cal., p. 191; Carpentier vs. City of Oakland, 30 Cal., p. 440. An attorney should communicate to his client whatever information he acquires in relation to the suit, and notice to him is constructive notice to his client.-Bierce vs. Red Bluff Hotel Company, 13 Cal., p. 160. For power and authority of attorney to bind client, etc., see Secs. 283, 284, ante, and notes. 3. APPEARANCE OF PARTY BY MISTAKE OF ATTOR NEY.-Forbes vs. Hyde, 31 Cal., p. 342; see Sec. 406, ante, Note 3. 1015. (§ 524.) When a plaintiff or a defendant, who has appeared, resides out of the State, and has no attorney in the action or proceeding, the service may be made on the Clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt. provisions apply to 1016. (§ 519.) The foregoing provisions of this Preceding Chapter do not apply to the service of a summons or other process, or of any paper to bring a party into contempt. not to proceeding to bring party into contempt. telegraph. 1017. Any summons, writ, or order in any civil Service by suit or proceeding, and all other papers requiring service, may be transmitted by telegraph for service in any place, and the telegraphic copy of such writ, or order, or paper so transmitted, may be served or executed by the officer or person to whom it is sent for that purpose, and returned by him, if any return be requisite, in the same manner, and with the same force and effect in all respects, as the original thereof might be if delivered to him, and the officer or person serving or executing the same has the same authority, and is subject to the same liabilities, as if the copy were the original. The original, when a writ or order, must also be filed in the Court from which it was issued, and a certified copy thereof must be preserved in the telegraph office from which it was sent. In sending it, either the original or the certified copy may be used by the operator for that purpose. Whenever any document to be sent by telegraph bears a seal, either private or official, it is not necessary for the operator, in sending the same, to telegraph a description of the seal, or any words or device thereon, but the same may be expressed in the telegraphic copy by the letters "L. S.," or by the word "seal." NOTE.-Stats. 1862, p. 288. 98-VOL. I. Compensation of CHAPTER VI. OF COSTS. SECTION 1021. Compensation of attorneys. Costs to parties. 1023. Several actions brought on a single cause of action can carry costs in but one. 1024. Defendant's costs must be allowed of course, in certain cases. 1025. Costs, when in the discretion of the Court. 1026. When the several defendants are not united in inter est, costs may be severed. 1027. Costs of appeal discretionary with the Court, in certain cases. 1028. Referee's fees. 1029. Continuance, costs may be imposed as condition of. 1030. Costs when a tender is made before suit brought. 1031. Costs in action by or against an administrator, etc. 1032. Costs in a review other than by appeal. 1033. Filing of and affidavit to bill of costs. 1034. Costs on appeal, how claimed and recovered. 1035. Interest and costs must be included by the Clerk in the judgment. 1036. When plaintiff is a non-resident or foreign corpora- 1038. Costs when State is a party. 1039. Costs when county is a party. 1021. (§ 494.) The measure and mode of comattorneys. pensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to costs and disbursements, as hereinafter provided. Costs to parties. NOTE.-An attorney has a lien for his costs upon a judgment recovered by him, which may be enforced upon giving notice to the adverse party not to pay the judgment until the amount of costs be paid; and in some cases where there has been collusion between the parties to cheat the attorney, the Court has required the client to satisfy them. But this practice is confined to some certain and fixed amount allowed to an attorney by statute, and is not extended to cases where an attorney or counselor claims a quantum meruit compensation for his services. In this State we have no statute giving costs to attorneys, and they must consequently recover for their services in the ordinary mode.-Ex Parte Kyle, 1 Cal., p. 331; see, also, Mansfield vs. Dorland, 2 Cal., p. 507; Russell vs. Conway, 11 Cal., p. 103. Plaintiffs, before the action was commenced agreed to give their attorneys, as compensation, one third of the judgment, with costs. After judgment was obtained and execution issued, the plaintiffs compromised with defendant for less than the amount of the judgment, and entered satisfaction upon the record. And it was decided that the attorneys had no lien upon the judgment, and could not disturb the satisfaction entered by the plaintiffs.-Mansfield vs. Dorland. 2 Cal., p. 507. An attorney is entitled to his retaining fee in advance, unless he stipulates to the contrary.-Covillaud vs. Yale, 3 Cal., p. 108. In a suit for compensation as attorney in a certain proceeding, it is not competent to prove the value of the attorney's services in another proceeding. A person who is not a lawyer cannot be a competent witness to prove the value of legal services.-Hart vs. Vidal, 6 Cal., p. 56. As to how receivers, authorized to employ counsel (and to stipulate that the compensation of such counsel shall be left to the Court), should provide for the payment of such compensation to counsel, see Adams vs. Wood, 8 Cal., p. 306. In suits by attorneys to recover compensation for legal services, unskillful or negligent conduct, or the skill employed in the case, is an important inquiry. A suit may be won and yet the attorney be guilty of great negligence.-Bridges vs. Paige, 13 Cal., p. 642. The allowance of costs rests in the discretion of the Court of original jurisdiction. And where, on sustaining a demurrer to a complaint, on the ground that the complaint did not state the facts sufficient to constitute a cause of action, the Court gave judgment for the defendant for full costs, including a jury fee. It was not such an abuse of discretion as to warrant interference by the Supreme Court.-Harvey vs. Chilton, 11 Cal., p. 119. A mortgage contained a stipulation for all the costs of foreclosure, including counsel fees, not exceeding five per cent of the amount due. The limitation of five per cent was held to apply to counsel fees alone, and the complainant could recover the whole of his costs by operation of the statute and independent of any stipulation.--Gronfier vs. Minturn et al., 5 Cal., p. 492. A person having an interest in mortgaged premises, subsequent to the mortgage, is a proper party to the foreclosure suit, but cannot be made liable for the costs of foreclosure beyond those occasioned by his |