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Same.

If such security is

the action may be dismissed.

the defendant. When required, all proceedings in the action must be stayed until an undertaking, executed by two or more persons, is filed with the Clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the Court or Judge, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking is executed and filed.

NOTE.-Defendant served on plaintiff, a non-resident, notice to give security for costs, the notice not being accompanied with an order staying proceedings, and on the next day judgment was rendered for defendant, and plaintiff appealed to the Supreme Court. Motion to dismiss the appeal was denied, because, after judgment, it came too late. The undertaking on appeal was sufficient security for costs subsequently incurred. Comstock vs. Clemens, 19 Cal., p. 77.

1037. (§ 514.) After the lapse of thirty days from not given, the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the Court or Judge may order the action to be dismissed.

Costs when State is a party.

Costs when

county is a party.

1038. When the State is a party, and costs are awarded against it, they must be paid out of the State Treasury.

1039. When a county is a party, and costs are awarded against it, they must be paid out of the County Treasury.

CHAPTER VII.

GENERAL PROVISIONS.

SECTION 1045. Lost papers, how supplied.

1046. Papers without the title of the action, or with defective
title, may be valid.

1047. Successive actions on the same contract, etc.

1048. Consolidation of several actions into one.

1049. Actions, when deemed pending.

1050. Actions to determine adverse claims and by sureties.
1051. Testimony, when to be taken by the Clerk.
1052. The Clerk must keep a register of actions.

1053. Two of three referees, etc., may do any act.

1054. The time within which an act is to be done may

be extended.

1055. Actions against a Sheriff for official acts.

1056. Actions may be prosecuted in the Spanish language
in certain counties.

1057. Undertakings mentioned in this Code, requisites of.
1058. People of State not required to give bonds when State
is a party.

papers, supplied.

1045. If an original pleading or paper be lost, the Lost Court may authorize a copy thereof to be filed and how used instead of the original.

NOTE.-Buckman vs. Whitney, 24 Cal., p. 267;
Buckman vs. Whitney, 28 Cal., p. 555.

without the

title of the
with
title, may

action, or

1046. (§ 531.) An affidavit, notice, or other paper, Papers without the title of the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding.

NOTE.-Mills vs. Dunlap, 3 Cal., p. 94.

1047. ($525.) Successive actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom.

defective

be valid.

[blocks in formation]

tion of

several

1048. ($526.) Whenever two or more actions Consolidaare pending at one time between the same parties and in the same Court, upon causes of action which might

actions

into one.

Actions, when deemed pending.

Actions to determine adverse claims, and

have been joined, the Court may order the actions to be consolidated.

NOTE.-But the Supreme Court will not consolidate actions brought upon distinct causes of action.-Wallace vs. Eldridge, 27 Cal., p. 498.

1049. An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.

1050. (§ 527.) An action may be brought by one person against another for the purpose of determining by suretics. an adverse claim, which the latter makes against the

Testimony, when to be taken by the Clerk.

The Clerk must keep a register of actions.

Two of three referees,

etc., may

former for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which plaintiff is bound as a surety.

NOTE.-Smith vs. Sparrow, 13 Cal., p. 596; King vs. Hall, 5 Cal., p. 82; Dane vs. Corduan, 24 Cal., p. 158. 1051. (§ 633.) On the trial of an action in a Court of record, if there is no short-hand reporter of the Court in attendance, either party may require the Clerk to take down the testimony in writing.

NOTE. The evidence taken down by the Clerk is no part of the record, unless made so by a bill of exceptions.-Wilson vs. Middleton, 2 Cal., p. 54; Pierce vs. Minturn, 1 Cal., p. 470; Gunter vs. Geary, 1 Cal., p. 462; Castro vs. Armesti, 14 Cal., p. 38.

1052. (§ 528.) The Clerk must keep among the records of the Court a register of actions. He must enter therein the title of the action, with brief notes under it, from time to time, of all papers filed and proceedings had therein.

1053. (§ 529.) When there are three referees, or three arbitrators, all must meet, but two of them may

do any act. do any act which might be done by all.

1054. (§ 530.) When the act to be done relates to the pleadings in the action, or the undertakings to

unded

2

Amended 1879-21.

1

within

act is to

may be

be filed, or the justification of sureties, or the service The time
of notices, other than of appeal, the time allowed by which an
this Code may, before the time expires, be extended, be done
upon good cause shown, by the Court in which the extended.
action is pending, or the Judge thereof, but such exten-
sion cannot exceed twenty days.

NOTE.-COMPUTATION OF TIME.-See Sec. 12 of
this Code, and note. The word "month" means a
calendar month, unless otherwise expressed.-Subd. 6,
Sec. 17 of this Code; L. & S. Society vs. Thompson,
32 Cal., p. 347.

1055. (§ 645.) If an action is brought against a Sheriff for an act done by virtue of his office, and he gives written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein is conclusive evidence of his right to recover against such sureties; and the Court, or Judge in vacation, may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs.

NOTE.-Dennis vs. Packard, 28 Cal., p. 101; Dutel vs. Pacheco, 21 Cal., p. 438. An indemnifying bond takes effect from its delivery.-Buffendeau vs. Brooks, 28 Cal., p. 641.

Actions
against a
Sheriff for

official acts.

may be
in the

Spanish
counties.

language
in certain

1056. (§ 646.) In the Counties of Monterey, San Actions Luis Obispo, Santa Barbara, Los Angeles, and San prosecuted Diego, if the defendant requires it, a copy of the summons or other process, in the Spanish language, must be delivered to him; and in the Counties of Santa Barbara, San Luis Obispo, Los Angeles, San Diego, and Monterey, with the 'consent of both parties, the process, pleadings, and other proceedings in a cause may be in the Spanish language.

takings

in this

1057. (§ 650.) In all cases where an undertaking, Underwith sureties, is required by the provisions of this mentioned Code, the officer taking the same must require the Code sureties to accompany it with an affidavit that they are each residents and householders or freeholders within

100-VOL. I.

requisites

of.

Same.

People of
State not

required to

give bonds

when State

is a party.

the State, and are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties.

NOTE.-The affidavit is sufficient if it substantially complies with this section.-Taaffe vs. Rosenthal, 7 Cal., p. 514. An undertaking stands on the same footing with a bond.-Canfield vs. Bates, 13 Cal., p. 606. If the undertaking is defective, but has been given in good faith, the Court should permit the party to file a sufficient one.-Cunningham vs. Hopkins, 8 Cal., p. 33; Cutter vs. Stark, 7 Cal., p. 244; Bryan vs. Berry, 7 Cal., p. 130. An undertaking, executed by plaintiff to the defendant by a wrong name, may be sued upon by the defendant, and he may describe it as given to him and show that he was the party intended.-Morgan vs. Thrift, 2 Cal., p. 563.

1058. In any civil action or proceeding wherein the State or the people of the State is a party plaintiff, or any State officer, in his official capacity, or on behalf of the State, or any county, city, or town, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the State, or the people thereof, or any officer thereof, or of any county, city, or town; but on complying with the other provisions of this Code, the State, or the people thereof, or any State officer acting in his official capacity, have the same rights, remedies, and benefits as if the bond, undertaking, or security were given and approved as required by this Code.

NOTE.-Stats. 1864, p. 261; 1856, p. 26.

Ned Riction (1059) 15113-4.

NOTE. The section numbers placed thus, (5), (2 68), and so on, to many of the sections in this volume, indicate the sections of the Practice Act of 1851. They are retained for convenience in reference.

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