Proof of service, how made.

§ 415. Proof of the service of summons and complaint must be as follows:

1. If served by the sheriff, his certificate thereof;

2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, if the same has been deposited; or,

4. The written admission of the defendant.

In case of service otherwise than by publication, the certificate or affidavit must state the time and place of service.

Legislation § 415. 1. Enacted March 11, 1872; based on Practice Act, §§ 33, 34 (New York Code, § 138). When enacted in 1872, (1) in the first para graph, the words after "service" were changed from "of the summons shall be as follows"; (2) in subd. 2, the clause, "or his deputy, the affidavit or certificate of such sheriff or deputy," was omitted, and "his certificate thereof" inserted; (3) in subd. 3, the word "has" was changed from "shall have"; in subd. 5 (which was § 34), the word "must" was changed from "shall," and the word "the" omitted before "service." 2. Amendment by Stats. 1901, p. 131; unconstitutional: See note, § 5, ante.

Citations. Cal. 128/332; 148/580; (subd. 1) 59/493; (subd. 3) 72/74; 73/600; 93/607; 101/573; 119/301; 134/625. Prac. Act: Cal. (§ 33) 11/314; 83/512, 514; 34/404, 425, 430; (§ 34) 34/404; 45/463.

Proof of service by affidavit: See post, 2009.

When jurisdiction of action acquired.

§ 416. From the time of the service of the summons and of a copy of the complaint in a civil action, where service of a copy of the complaint is required, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings. The voluntary appearance of a defendant is equivalent to personal service of the summons and copy of the complaint upon him.

Legislation § 416. 1. Enacted March 11, 1872; based on Practice Act, § 35 (New York Code, § 139), which read: "From the time of the service of the summons and copy of complaint in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him." When enacted in 1872, (1) the word "is," in both instances, was changed from "shall be," and (2) the last sentence was changed to begin with "The" instead of "A." 2. Amended by Code Amdts. 1873-74, p.

299.

Citations. Cal. 56/629; 59/473; 60/299; 64/598; 75/220, 239; 84/29; 87/ 152; 92/355; 99/205; 103/522; 117/581; 122/450; 125/300; 133/71; 141/ 657; 144/30. App. 7/652. Prac. Act: Cal. (§ 35) 1/372; 6/296; 9/111; 45/463.

Admission of service: Ante, § 415.

Appearance: Post, § 1014.

Waiver of summons: Ante, § 406.

§ 420. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court.

Legislation § 420. Enacted March 11, 1872; re-enactment of Practice Act,

§ 36.

Citations. Cal. 71/522; 117/240.

This code prescribes the form and rules of pleadings.

§ 421. The forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this code.

Legislation 421. Enacted March 11, 1872; based on Practice Act, § 37 (New York Code, § 140), which read: "All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act."

Citations. Cal. 83/397; 114/475; 139/474. Prac. Act: Cal. (§ 37) 9/467, 475; 16/243; 24/95.

One form of action: Ante, § 307.

Rules of pleading, generally: Post, §§ 452 et seq.

What pleadings are allowed.

§ 422. The only pleadings allowed on the part of the plaintiff are: 1. The complaint;

2. The demurrer to the answer;

3. The demurrer to the cross-complaint;

4. The answer to the cross-complaint. And on the part of the defendant:

1. The demurrer to the complaint;

2. The answer;

3. The cross-complaint;

4. The demurrer to the answer to the cross-complaint.

Legislation § 422. 1. Enacted March 11, 1872; based on Practice Act,

38,

All

as amended by Stats. 1865–66, p. 701, which read: "The pleadings on the part of the plaintiff shall be the complaint or demurrer to the defendant's answer; the pleadings on the part of the defendant to the original complaint or cross-complaint of a co-defendant shall be the demurrer or answer. When a defendant is entitled to relief as against the plaintiff alone, or against the plaintiff and a co-defendant, he may make a separate statement in his answer of the necessary facts, with a prayer for the relief sought, instead of bringing a distinct cross-action. pleadings subsequent to the original complaint shall be filed with the clerk, and a copy thereof served on the adverse party or his attorney, if the adverse party or his attorney live within the county where the action is pending; provided, that when the answer contains a cross-complaint, the parties plaintiff or defendant, or his or their attorney thereto, shall be served with a copy thereof, and shall have the same time thereafter to plead thereto that is allowed for pleading to the original complaint after service of the summons." When enacted in 1872, § 422 read as at present, except that it did not contain subds. 3, 4, in either place. 2. Amendment by Stats. 1901, p. 132; unconstitutional: See note, § 5, ante. 3. Amended by Code Amdts. 1907, p. 705.

Citations. Cal. 56/325; 114/475. Prac. Act: Cal. (§ 38) 1/174; 5/125; 84/27, 28; 38/585; 39/177; 77/226.

Complaint, first pleading.

§ 425. The first pleading on the part of the plaintiff is the complaint. Legislation § 425. Enacted March 11, 1872.

Complaint, what to contain.

§ 426. The complaint must contain:

1. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action;

2. A statement of the facts constituting the cause of action, in ordinary and concise language;

3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated. Legislation § 426. Enacted March 11, 1872; based on Practice Act, § 39 (New York Code, § 142). When enacted in 1872, (1) in the introductory para. graph, "must" was changed from "shall"; (2) in subd. 1, (a) "specifying" was omitted before "the name," (b) the words "the name of" were omitted before "county," (c) and the words "plaintiff and defendant" were omitted at the end of the subdivision; (3) in subd. 3, "must" was changed from "shall."

Citations. Cal. 79/585; 124/83; 153/620; (subd. 2) 51/545; 61/211; 63/ 427; 77/413; 81/121; 83/397; 93/57; 94/174; 99/418; 126/634; 139/474;

(subd. 8) 99/244. App. 7/665. Prac. Act: Cal. (§ 39) 1/96; 7/260; 25/89; 87/253, 303; 40/491.

Title. Papers defectively entitled: Post, § 1046.

Venue: Ante, §§ 392-400.

Parties: Ante, §§ 367-390.

Parties, misjoinder or non-joinder: Post, § 430.

Association may be sued under common name: Ante, § 388.

Intervention: Ante, § 387.

Fictitious names for defendants: Post, § 474.

Abbreviations and numerals: Ante, § 186.

Construction of pleadings to be liberal: Post, § 452.

Errors and defects to be disregarded: Post, § 475.

Material allegations, not controverted, taken as true: Post, § 462.

Service of complaint: Ante, § 410.

Several causes of action, uniting: Post, § 427.

Pleading, in particular cases: See under specific title.

Amendment. Of pleadings: Post, §§ 472, 473. Of complaint: Post, § 432.

As to effect of setting out written instrument, if its genuineness is not denied on oath: Post, §§ 447-449.

Variance: Post, §§ 469 et seq.

Gold coin, allegations to obtain judgment in: Post, § 667.

Supplemental complaint: Post, § 464.

Verification of pleadings: Post, § 446.

What causes of action may be joined.

§ 427. The plaintiff may unite several causes of action in the same complaint, where they all arise out of:

1. Contracts, express or implied;

2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same;

3. Claims to recover specific personal property, with or without damages for the withholding thereof;

4. Claims against a trustee by virtue of a contract or by operation of law;

5. Injuries to character;

6. Injuries to person;

7. Injuries to property;

8. Claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section.

The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person.

Legislation § 427. 1. Enacted March 11, 1872; based on Practice Act, § 64 (New York Code, § 167), as amended by Stats. 1855, p. 196. When enacted in 1872, (1) in the introductory paragraph, "where" was changed from "when"; (2) the word "or" was stricken from the end of subds. 1, 2, 4, 5, 6; (3) in the

last paragraph, (a) the word "But," as the introductory word, was stricken out, (b) "must" was changed from "shall," in the three instances, and (c) in the last clause, the introductory word "but" was changed from "provided, however, that"; the section then contained only seven subdivisions. 2. Amendment by Stats. 1901, p. 133; unconstitutional: See note, § 5, ante. 3. Amended by Stats. 1207, p. 705, adding subd. 8.

Citations. Cal. 51/491; 65/488; 73/190; 80/324; 83/400; 90/76; 96/401, 402; 100/373; 102/510; 105/689; 109/209; 135/560; 137/649; (subd. 1) 88/ 541; 92/102; 104/640; (subd. 2) 65/162; 72/329; (subd. 4) 71/188, 189; 125/234; 140/150; 146/56. App. 3/737; 4/766. Prac. Act: Cal. (§ 64) 1/ 192; 3/206; 15/152; 22/462; 28/488, 639; 31/496; 32/342; 36/283; 46/171; 50/654.

CHAPTER III.

Demurrer to Complaint.

1

§ 432.

433.

§ 434.

May be taken to part. May answer and

What proceedings are to be had when complaint is amended.
Objection not appearing on complaint, may be taken by answer.
Objections, when deemed waived.

When defendant may demur.

§ 430. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either:

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action;

2. That the plaintiff has not legal capacity to sue.

3. That there is another action pending between the same parties for the same cause;

4. That there is a defect or misjoinder of parties plaintiff or defendant;

5. That several causes of action have been improperly united, or not separately stated;

6. That the complaint does not state facts sufficient to constitute a cause of action;

7. That the complaint is ambiguous;

8. That the complaint is unintelligible; or,

9. That the complaint is uncertain.

Legislation § 430. 1. Enacted March 11, 1872; re-enactment of Practice Act, § 40 (New York Code, § 144), as amended by Stats. 1859, p. 139. 2. Amendment by Stats. 1901, p. 133; unconstitutional: See note, § 5, ante. 3. Amended by Stats. 1907, p. 706, (1) striking out the word "or" at the end of subds. 1, 2, 3, 4, 6; (2) in subd. 5, adding, after the word "or," the words "not separately stated"; (3) rearranging subd. 7 into the present subds. 7, 8, 9, that subdivision formerly reading, "7. That the complaint is ambiguous, unintelligi ble, or uncertain."

Citations. Cal. 54/292; 76/43; 77/311; 98/417; 118/224, 239; 124/83; 125/111; 136/614; 151/13; 153/245; (subd. 2) 66/59; 144/364; 146/180,