Page images
PDF
EPUB
[graphic]

Art. 857, Sec. 123. The writ shall be directed to the sheriff of any county in which property of such defendant may be, and require him to attach and safely keep all the property of such defendant 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 shall be stated in conformity with the complaint, unless the defendant give him security by the undertaking, of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs; in which case, to take such undertaking. Several writs may be issued at the same time, to the sheriffs of different counties.

Art. 858, Sec. 124. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits thereon, and all debts due such defendant, and all other property in this state of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution.

Art. 859, Sec. 125. The sheriff to whom the writ is directed and delivered, shall execute the same without delay, and if the undertaking mentioned in section one hundred and twenty-three be not given, as follows: 1. Real property shall be attached by leaving a copy of the writ with the occupant thereof; or if there be no occupant, by posting a copy in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the recorder of the county. 2. Personal property, capable of manual delivery, shall be attached by taking it into custody. 3. Stock or shares, or interest in stock or shares, of any corporation or company, shall be attached, by leaving with the president, or other head of the same, or the secretary, cashier or managing agent thereof, a copy of the writ, and a notice stating that the stock or interests of the defendant is attached in pursuance of such writ. 4. Debts and credits, and other personal property, not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control such credits, or other personal property, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ.

ART. 860, Sec. 126. Upon receiving information in writing from the plaintiff, or his attorney, that any person has in his possession, or under his control

, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the sheriff shall serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ.

ART. 861, Sec. 127. All persons having in their possession, or under their control, any credits or other personal property, belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the sheriff

, liable to the plaintiff, for the amount of such credits, property or debts, until the attachment be discharged, or any judgment recovered by him be satisfied.

ART. 862, Sec. 128. Any person owing debts to the defendant, or having in his possession or under his control any credits or other personal property belonging to the defendant, may be required to attend before the court or judge, or a referee appointed by the court or judge, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court or judge may, after such examination, order personal property capable of manual delivery to be delivered to the sheriff

, on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. (1)[Am. April 28, 1855; R. S. St. 1851, 70 ; St. 1850, 447; C. L. 541.

(1) Ogden v. Mills, 3 Cal. 253; Norris v. Burgoyne, 4 Cal. 409; Cahoon v. Lovy, 4 Cal. 243.

Art. 863, Sec. 129. The sheriff shall make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to debts and credits attached, he shall request, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each; and, if such memorandum be refused, he shall return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceedings taken for the purpose of obtaining information respecting the amount and description of such debt or credit.

Art. 864, Sec. 130. If any of the property attached be perishable, the sheriff shall sell the same in the manner in which such property is sold on execution. The proceeds, and other property attached by him, shall be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him, if the same can be done without suit. The sheriff's receipt shall be a sufficient discharge for the amount paid.

Art. 865, Sec. 131. If any personal property attached be claimed by a third person as his property, the sheriff may summon a jury of six men to try the validity of such claim; and such proceedings shall be bad thereon with the like effect as in case of a claim after levy upon execution.

ART. 866, Sec. 132. If judgment be recovered by the plaintiff, the sheriff shall satisfy the same out of the property attached by him which has not been delivered to the defendant, or a claimant as herein before provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose : 1. By paying to the plaintiff' the proceeds of all sales of perishable property sold by him, or [of] any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment. 2. If any balance remain due, and an execution shall have been issued on the judgment, he shall sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notices of the sales shall be given, and the sales conducted as in other cases of sales on execution. (1) Art. 867, Sec. 133. If

, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the sheriff shall proceed to collect such balance as upon an execution in other cases. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment.

Art. 868, Sec. 134. If the execution be returned unsatisfied in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section one hundred and twenty-three or section one hundred and thirty-seven, or he may proceed as in other cases upon the return of an execution. (2)

ART. 869, Sec. 135. If the defendant recover judgment against the plaintiff, any undertaking received in the action, all the proceeds of sales and money collected by the sheriff, and all the property attached remaining in the sheriff's hands, shall be delivered to the defendant or his agent; the order of attachment shall be discharged and the property released therefrom.

Art. 870, Sec. 136. Whenever the defendant shall have appeared in the action, he may apply, upon reasonable notice to the plaintiff, to the court in which the action is pending, or to the judge thereof, or to a county judge, for an order to discharge the same, upon the execution of the undertaking mentioned in the next section; and if the application be granted, all the proceeds of sales and moneys (1) Subletto v. Melhrado, 1 Cal. 104.

(2) Low et al. v. Adams, July T. 1856.

collected by the sheriff, and all the property attached remaining in his hands, shall be released from the attachment, and delivered to the defendant, upon the justification of the sureties on the undertaking, if required by the plaintiff.—[Am. May 15, 1854; R. S. St. 1851, 71; C. L. 543.

ART. 871, Sec. 137. Upon such application the defendant shall deliver to the court or judge an undertaking, executed by at least two sureties, residents and freeholders or householders in the county, to the effect that the sureties will, on demand, pay to the plaintiff the amount of any judgment that may be recovered in favor of the plaintiff in the action, not exceeding the sum specified in the undertaking, which shall be sufficient to satisfy the amount claimed by the plaintiff in his complaint, and the costs. The sureties may be required to justify on such application before the judge or court, and the property attached shall not be released from an attachment, without their justification, if the same be required. [Am. May 15, 1854; R. S. St. 1851, 72 ; C. L. 543.

Art. 872, Sec. 138. The defendant may also, any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or to the judge thereof, or to a county judge, that the attachment be discharged, on the ground that the writ was improperly issued. (1)-[Am. May 15, 1854 ; R. S. St. 1851, 72; C. L. 543.

ART. 873, Sec. 139. If the motion be made upon affidavits, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the order of attachment was made.

Art. 874, Sec. 140. If, upon such application, it shall satisfactorily appear that the writ of attachment was improperly issued, it shall be discharged.

Art. 875, Sec. 141. The sheriff shall return the writ of attachment with the summons, if issued at the same time; otherwise, within twenty days after its receipt, with a certificate of his proceedings indorsed thereon, or attached thereto. The provisions of this chapter shall not apply to any suits already commenced, but so far as such suits may be concerned, the act entitled “ An Act to regulate Proceedings against Debtors, by Attachment," passed April twenty-second, one thousand eight hundred and fifty, shall be deemed in full force and effect. (2)

Art. 876. Whenever property has been taken by an officer, under a writ of attachment, in pursuance of the provisions of said act,(3) and it shall be made to appear satisfactorily to the court, or a judge thereof, or a county judge, that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold, in the same manner as property is sold under an execution, and the proceeds to be deposited in court, to abide the judgment in the action. Such order shall be made only upon notice to the adverse party, or his attorney, in case such party have been personally served with a summons in the action.—[Act May 15, 1854, in.

Art. 877, Sec. 142. When it is admitted, by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the court.

Art. 878, Sec. 143. A receiver may be appointed by the court in which the action is pending, or by a judge thereof. 1. Before judgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or to an interest in the property which is the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired. 2. After judgment

(1) Reiss v. Brady, 2 Cal. 132; Griswold v. Sharp, 2 Cal. 17.
(2) Newhall v. Provost, Jan. T. 1856; Egery v. Buchanan, 5 Cal. 53. (3) Act of 1851.

to dispose of the property according to the judgment, or to preserve it during the pending of an appeal; and, 3. In such other cases as are in accordance with the practice of courts of equity jurisdiction.—[Am. May 15, 1854; R. S. St. 1851, 72 ; C. L. 544.

6. Trial and Judgment. ART. 879, Sec. 144. A judgment is the final determination of the rights of the parties in the action or proceeding, and may be entered in the term or vacation. (1)

ART. 880, Sec. 145. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. (2)

Art. 881, Sec. 146. In an action against several defendants the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others

, whenever a several judgment is proper. ART. 882, Sec. 147. The relief granted to the plaintiff

, if there be no answer, shall not exceed that which he shall have demanded in his complaint ; but, in any other case, the court mạy grant him any relief consistent with the case made by the complaint and embraced within the issue.

Art. 883, Sec. 148. An action may be dismissed or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon. 2. By either party, upon the written consent of the other. 3. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. 4. By the court when, upon the trial, and before the final submission of the case, the plaintiff abandons it. 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. (3)

ART. 884, Sec. 149. In every case other than those mentioned in the last section the judgment shall be rendered on the merits.

Art. 885, Sec. 150. Judgment may be had, if the defendant fail to answer, as follows :(4) 1: In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon application of the plaintiff

, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant, or against one or more of several defendants in the cases provided for in section twenty-two. 2. In other actions, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk shall enter the default of the defendant; and thereafter the plaintiff may apply at the first or any subsequent term of the court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may

take the account or hear the proof, or may, in its discretion, order a reference for that purpose.(5) And where the action is for the recovery of damages, in whole or in

(1) Suydam v. Pitcher, 4 Cal. 280; Morrison v. Dapman, 3 Cal. 255; Baldwin v. Kramer, 2 Cal. 582; Carpentier r. Hart, 5 Cal. 406; Robb v. Robb, Jan. T. 1856; Belt v. Davis, 1 Cal. 134; Smith v. Chichester, i Cal. 409; Loring v. Illsley, 1 Cal. 24; Pico v. Sunol et al., July T. 1856.

(2) Rowe v. Chandler, 1 Cal. 167; Estell v. Chenery, 3 Cal. 467; Helm v. Dumars, 3 Cal. 454; Adams o. Gorham, Jan. T. 1856.

(3) Ringgold v. Haven, 1 Cal. 108; Dalrimple v. Hansen, id. 125; Mateer v. Brown, id. 221; Sedley v. Hays, id. 160; Barnett v. Kilbourne, 3 Cal. 327; Paralta v. Mariea, id. 185; Rice v. Leonard, 6 Cal. 61; Pinkham v. McFarland. id. 137. (4) Whipley v. Flower, July T. 1856.

(5) Emeric v. Tams, April T. 1856.

part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages the examination of a long account be necessary, by a reference, as above provided. 3. In actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time designated in the order of publication, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court shall thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the state, shall require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. (1)

Art. 886, Sec. 151. An issue arises when a fact or conclusion of law is maintained by the one party and is controverted by the other. Issues are of two kinds: 1. Of law; and, 2. Of fact.

Art. 887, Sec. 152. An issue of law arises upon a demurrer to the complaint or answer to some part thereof.

Sec. 153. An issue of fact arises: 1. Upon a material allegation in the complaint controverted by the answer; and, 2. Upon new matters in the answer, except an issue of law is joined therein.-[Am. May 15, 1854; R. S. St. 1851, 74; St. 1850, 440; C. L. 546.

ART. 888, Sec. 154. An issue of law shall be tried by the court, unless it be preferred, upon assent, as provided in chapter six of this title. (2)

Sec. 155. An issue of fact shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as provided in this act. Where there are issues both of law and fact to the same complaint, the issues of law shall be first disposed of.

ART. 889, Sec. 156. The clerk shall enter causes upon the calendar of the court according to the date of the issue. Causes once placed on the calendar for a general or special term, if not tried or heard at such term, shall remain upon the calendar from court to court until finally disposed of.

ART. 890, Sec. 157. Either party may bring the issue to trial or to a hearing, and, in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case and take a dismissal of the action, or a verdict or judgment, as the case may require.

Art. 891, Sec. 158. A motion to postpone a trial, on the ground of the absence of evidence, shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admit 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 shall not be postponed.

Art. 892, Sec. 159. When the action is called for trial by jury, the clerk shall prepare separate ballots, containing the names of the jurors summoned who have appeared and not been excused, and deposit them in a box. He shall then draw from the box twelve names, and the persons whose names are drawn shall constitute the jury. If the ballots become exhausted before the jury is complete, or if, from any cause, a juror or jurors be excused or discharged, the sheriff shall summon, under the direction of the court, from the citizens of the county and not from bystanders, so many qualified persons as may be necessary to complete the jury. The jury shall consist of twelve persons, unless the parties consent to a less number. The parties may consent to any number not less than three. Such consent shall be entered by the clerk in the minutes of the trial.(3)

Art. 893, Sec. 160. As soon as the jury is completed, an oath or affirmation (1) Stevens v. Ross, 1 Cal. 94; State v. Woodlief, 2 Cal. 241; Bidleman v. Kewen, id. 248; Hartman v. Williams, 4 Cal. 254.

(3) Smith v. Pollock, 2 Cal. 92; Russell v. Elliot, id. 245; Sampson v. Shaeffer, 3 Cal. 107 ; People v. March, July T. 1855.

[graphic]
« PreviousContinue »