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evidence in any prosecution instituted under this act, shall forfeit and pay for every such default or refusal, to the use of the county, unless some reasonable cause be assigned, such fine, not exceeding twenty dollars, as the said justice shall think proper to impose, and execution may issue therefor.
16. [1858.*] If either party shall feel aggrieved by the verdict of the jury or decision of the justice, he may appeal within ten days, as in other cases tried before justices of the peace, and he shall give bond with two or more sufficient sureties, to be approved by said justice, conditioned to pay all costs of such appeal, and abide the order the court may make therein, and pay all rent and other damages justly accruing during the pendency of such appeal; and upon the filing of the notice of appeal, and the affidavit of the appellant that the appeal is taken in good faith, and that he intends to perfect said appeal, the justice shall grant a stay of the writ of restitution, for not exceeding two days, for the purpose of allowing the appellant an opportunity to file his appeal bond, and for no other.
1. The provision requiring justices' fees to be paid before the papers on appeal are sent up, will also apply in these cases. The action must be governed by the provisions of this act, so far as they go, and as to matters not embraced by the words of the act, the general rules governing proceedings in justices' courts will apply. People v. Harris, 9 Cal. 571.
17. [1852.t] Upon taking such appeal, all further proceedings in the case shall be thereby stayed, and the appellate court, in all cases. which are now pending or which may be hereafter brought, shall proceed to try the case anew, and shall issue all necessary writs and process to carry out the provisions of this act. All laws or parts of laws which require a statement of the case or evidence, or exceptions to be taken before a justice of the peace, on the trial of a case for forcible entry and unlawful detainer, in order to perfect an appeal, are hereby repealed, and the same shall be tried in the appellate court, on the evidence introduced before said appellate court.
1. The authority of the court to try these cases anew, on appeal, is the exercise of appellate and not original jurisdiction. Townsend v. Brooks, 5 Cal. 52.
* Statutes of 1858, 90.
† Statutes of 1852, 156.
2. The power of the county court to treble the damages by way of penalty in actions of forcible entry, results by necessary implication from its power to try the case anew. OʻCallaghan v. Booth, 6 Cal. 63.
18. If a writ of restitution shall have been issued previous to the taking of the appeal, the justice shall give the appellant a certificate of the allowance of such appeal, and upon the serving of such certificate upon the officer having such writ of restitution, said officer shall cease all further proceedings by virtue of such writ, and if such writ shall not have been completely executed, the parties in possession shall remain in possession of the premises until the appeal shall be determined.
1. If the sheriff refuses to execute the writ on the ground that the premises are in possession of certain persons not parties to the suit, the court will award a peremptory mandamus against the sheriff to compel him to execute the writ. Fremont v. Crippen, 10 Cal. 211.
19. In all cases of appeal under this act, the appellate court shall not dismiss or quash the proceedings for want of form, only provided the proceedings have been conducted substantially according to the provisions of this act.
20. Amendments to the complaint, answer, or summons, or matters of form only, may be allowed by the court at any time before final judgment, upon such terms as may be just, and all matters of excuse, justification, or avoidance of the allegations in the complaint, may be given in evidence under the answer.
21. The following, or equivalent forms, may be used in proceedings under this act to wit :
The people of the state of California
To the sheriff or any constable of the county aforesaid : Whereas, A. B., of the county of — hath exhibited to me, a justice of the peace for said county, a complaint against C. D., of the county of — for that the said C. D., of the county of — on the — day of — A. D. — at the county of (here insert the substance of the complaint with sufficient certainty). You
are therefore commanded to summon the said C. D., if he be found in your county, to be and appear before me at my office, (or stating the place) on the day of — A. D., — , then and there to make answer unto the complaint aforesaid. Given under my hand and seal, this — day of — A. D.,
E. F., Justice of the Peace.
WRIT OF RESTITUTION.
The people of the state of California
To the sheriff, or any constable of the county aforesaid : Whereas, A. B., of the county of — at a court of inquiry of an unlawful or forcible entry, or unlawful detainer, (as the case may be) held at my office (or state the place in the county aforesaid, on the
- day of — A. D., — , before me, a justice of the peace for the county aforesaid, by the consideration of the court, hath recovered judgment against C. D., to have restitution of (here describe the premises, as in the complaint). You are therefore commanded that, taking with you the force of the county, if necessary, you cause the said C. D. to be immediately removed from the aforesaid premises, and the said A. B. to have peaceable restitution of the same ; and you are also commanded that, of the goods and chattels of the said C. D., within said county, you cause to be made the sum of — dollars, for the said plaintiff, together with the costs of suit endorsed hereon, and make return hereof within thirty days from this date. Given under my hand, this —— day of — A. D., –
E. F., Justice of the Peace. 1. This writ does not determine either the right to the property or the right of pos. session, and constitutes no defense to an action of ejectment. Mitchell v. Hagood, 6 Cal. 148.
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RULES OF THE SUPREME COURT
I. Applicants for license to practice as attorneys and counselors of this court may be examined in open court on the first week of each term.
II. In all cases where an appeal is perfected and the statement settled, (if there be one) twenty days before the commencement of the next succeeding term of this court, the transcript of the record shall be filed on or before the first day of such term.
III. If the transcript of the record is not filed within the time prescribed, the appeal may be dismissed, on motion, during the first week of the term, without notice, upon satisfactory evidence of the omission. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the opposite party; and unless so restored, the dismissal shall be final, and a bar to any other appeal in the same cause.
IV. Satisfactory evidence of the omission to file the transcript, shall be deemed to be the certificate of the clerk below, under the seal of the court, certifying the amount or character of the judgment, the date of its rendition, the time when the appeal was perfected and statement settled, (if there be one) and also that the appellant has received the transcript, or that he has not directed a transcript of the record to