court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such aetion, to answer to the merits of the original action. When, in an action to recover the possession of personal property, the person making any affidavit did not truly state the value of the property, and the officer taking the property, or the sureties on any bond or undertaking is sued for taking the same, the officer or sureties may in their answer set up the true value of the property, and that the person in whose behalf said affidavit was made was entitled to the possession of the same when said affidavit was made, or that the value in the affidavit stated was inserted by mistake, the court shall disregard the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made.

Legislation § 473. 1. Enacted March 11, 1872; based on Practice Act, § 68, as amended by Stats. 1865-66, p. 843, which read: "The court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may. upon like terms, enlarge the time for an answer or demurrer, or demurrer to an answer filed. The court may likewise, upon affidavit showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars, and may, upon like terms, allow an answer to be made after the time limited by this act; and may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any cause satisfactory to the court, or the judge at chambers, the party aggrieved has been unable to apply for the relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or the judge at chambers in vacation, may grant the relief upon application made within a reasonable time, not exceeding five months after the adjournment of the term. When, from any cause, the summons and a copy of the complaint in an action have not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action." When enacted in 1872, (1) the word "an" was omitted before the words "answer or demurrer," and, immediately after these words, the words "or demurrer to an answer filed" were also omitted, (2) the word "act" was changed to "code," and (3) the word 'representatives" was changed to "representative." 2. Amended by Code Amdts. 1873-74, p. 302, (1) inserting the words "allow a party to," before "amend any";

(2) changing the word "proceedings" to "proceeding," before "by adding"; (8) adding the words "in its discretion," instead of "upon affidavit showing good cause therefor"; (4) inserting the word "also" instead of the words "may, upon such terms as may be just, and upon payment of costs"; (5) after the word "legal," changing "representatives" to "representative"; (6) changing the word "cause" to "reason"; (7) changing the words "at chambers," after "judge," to "thereof"; (8) changing the words "been able" to "failed," before "to apply"; (9) changing the words "at chambers," before "in vacation," to "thereof"; (10) changing, after "exceeding," the word "five" to "six"; (11) omitting the words "and a copy of the complaint," after "summons''; (12) changing the word "have" to "has," before "not been"; (13) changing the words "six months" to "one year," before "after the rendition"; (14) adding the last sentence, beginning "When, in an action," which read as at present, except that it did not contain the words "or undertaking," after "any bond." 3. Amended by Code Amdts. 1880, p. 2.

Citations. Cal. 48/562; 51/119, 155; 56/250; 57/336; 60/229, 250, 253, 366; 61/296, 298, 300, 301, 360; 62/282; 63/457, 477, 478; 64/14, 430; 65/ 370, 371, 397, 495; 66/336, 337; 67/54, 501; 68/215, 277, 371, 372, 401, 423, 606; 70/235; 72/218, 222, 223, 377; 73/205, 553; 74/343, 344, 403, 404, 405; 77/307; 80/200, 333; 82/509, 510; 83/228, 459; 84/111, 112, 514, 608; 85/ 94, 117; 86/60, 496, 563, 596; 87/154; 89/337; 90/19, 564; 91/322, 587; 92/201, 350, 355; 93/389, 511, 512; 94/43, 44, 545; 95/523; 96/658, 659; 97/92, 390, 391, 392, 393, 516, 629, 631, 632; 98/250; 99/625, 626, 627; 100/ 92; 101/34, 575; 102/603, 616, 617; 103/453, 536; 104/38; 108/214, 234; 109/72, 121, 686, 687, 690; 110/504; 112/117; 113/342; 115/101; 116/51, 93, 135, 283, 381; 118/97, 360, 592; 119/107, 109, 110, 366, 589; 120/37; 121/416, 418, 419; 122/109, 208, 209; 123/171, 253, 254, 540; 124/74, 143, 144; 125/203; 126/55, 372; 127/170; 128/245, 393, 561; 129/15, 282, 311, 312; 130/390, 514, 667; 131/617; 132/8, 423, 424, 427; 134/127, 128, 383, 384; 136/390; 137/139; 138/26, 200, 300, 642; 139/591, 592, 650, 651; 140/ 5, 287, 485, 674; 142/426; 143/17, 134, 632, 633, 675; 144/424; 145/44, 48, 397, 562, 597; 146/214, 247, 260, 498; 147/377, 541; 148/139, 140, 775; 149/ 68; 495, 561, 563, 565, 566, 568, 661; 150/102, 242, 243, 260, 326, 339, 340, 484, 486, 583, 717; 151/12, 13, 100, 219, 354, 393, 397; 152/699, 700; 153/ 542. App. 1/95, 98, 99, 150, 238, 597; 2/155, 157, 193, 194, 441; 3/45, 129, 130; 4/108, 451; 5/275, 277, 316, 518; 6/34, 54, 62, 138, 176, 612, 613, 632; 7/266, 318, 321, 323, 438, 439, 684, 711. Prac. Act: Cal. (§ 68) 1/175, 192; 3/118, 134; 4/281; 6/174; 7/32, 280, 281; 9/111; 18/456; 19/708, 709; 21/ 273; 27/333; 28/338, 339, 652, 672; 29/74, 423; 32/121; 34/26, 80, 172, 241, 239; 36/289; 39/108, 313; 40/426; 41/443; 43/258, 260; 47/527; 49/ 807, 308; 57/336; 58/97; 72/222; 74/403; 85/117; 97/391; 99/626; 139/650. Relief from judgment in justice's court: See post, § 859.

Suing a party by a fictitious name, when allowed.

§ 474. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.

Legislation § 474. Enacted March 11, 1872; based on Practice Act, § 69 (New York Code, § 175), which (1) did not have the words "he must state that fact in the complaint, and," and (2) had the word "may" instead of "must," before "be amended."

Citations. Cal. 63/119; 70/25; 113/500; 125/104; 143/134. App. 7/654. Prac. Act: Cal. (§ 69) 40/490, 491; 42/578.

No error or defect to be regarded unless it affects substantial rights. § 475. The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not oecurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.

Legislation § 475. 1. Enacted March 11, 1872; based on Practice Act, § 71 (New York Code, § 176), which lead: "The court shall, in every stage of an action, disregard any error or defect in the pleadings, or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect." When enacted in 1872, (1) the word "shall," after "The court," was changed to "must," and (2) the same word, before "not affect," was changed to "does." 2. Amended by Stats. 1897, p. 44.

Citations. Cal. 48/354; 52/184; 57/619; 61/305; 63/34; 64/24; 65/390; 66/58; 67/4; 68/274, 616; 71/185, 191; 72/20, 556; 73/189, 553; 76/280, 632; 77/94; 78/492; 79/208, 586; 82/337, 424; 84/201; 88/452; 89/506; 90/ 94; 95/295; 96/77, 402; 97/597; 101/312; 106/152; 111/686; 112/227; 113/ 536; 115/277, 372; 116/600; 117/25; 121/172; 123/346; 126/325; 128/245, 268, 526; 129/202, 272; 130/496; 132/196; 133/449; 135/35, 48, 569; 136/ 71; 138/452; 140/591; 145/285, 495; 147/508; 151/706. App. 1/278, 300, 426, 538; 2/111, 678, 688; 5/313, 754; 6/61, 78. Prac. Act: Cal. (§ 71) 28/ 265; 32/14; 37/336; 39/175; 41/317.

Similar provision: Pen. Code, §§ 1258, 1404.

Time to amend or answer, running of.

§ 476. When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order.

Legislation § 476. 1. Added by Code Amdts. 1873-74, p. 304. 2. Amendment by Stats. 1901, p. 135; unconstitutional: See note. § 5, ante.

Citations.

Cal. 52/338; 58/96; 77/151; 95/367; 99/176; 129/250.

Time to answer: Ante, §§ 432, 472, 473.

Notice, service of: Post, §§ 1010 et seq.

478.

$479. $480.

§ 481.

1 482. $483.

I 484. $485.

§ 486.

487.

§ 488. $489.

§ 490. 1491. § 492.

§ 493.

494.

$495.

CHAPTER I.

Arrest and Bail.

No person to be arrested except as prescribed by this code.

Cases in which defendant may be arrested.

Order for arrest, by whom made.

Affidavit to obtain order, what to contain.

Security by plaintiff before order of arrest.

Order, when made, and its form.

Affidavit and order to be delivered to the sheriff, and copy to defendant.
Arrest, how made.

Defendant to be discharged on bail or deposit.

Bail, how given.

Surrender of defendant.

Same.

Bail, how proceeded against.

Bail, how exonerated.

Delivery of undertaking to plaintiff, and its acceptance or rejection by him.
Notice of justification. New undertaking, if other bail.

Qualifications of bail.

Justification of bail.

Allowance of bail.

$496.

497.

Deposit of money with sheriff.

$498.

Payment of money into court by sheriff.

$499.

$ 500.

§ 501. $502. § 503.

§ 504.

Substituting bail for deposit.

Money deposited, how applied or disposed of.

Sheriff, when liable as bail, and his discharge from liability.

Proceedings on judgment against sheriff.

Motion to vacate order of arrest or reduce bail. Affidavits on motion.
When the order vacated or bail reduced.

No person to be arrested except as prescribed by this code.

§ 478. No person can be arrested in a civil action, except as prescribed in this code.

Legislation § 478.

Enacted March 11, 1872; based on Practice Act, § 72 (New York Code, § 179), which had (1) "shall" for "can," (2) "by" for "in," and (3) "act" for "code."

Code Civ. Proc.-12

Citations. Cal. 49/466; 101/334; 120/317. Prac. Act: Cal. (§ 72) 5/282; 36/167.

Cases in which defendant may be arrested.

§ 479. The defendant may be arrested, as hereinafter prescribed, in the following cases:

1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the state with intent to defraud his creditors.

2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity; or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty.

3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof, has been concealed, removed, or disposed of, to prevent its being found or taken by the

sheriff.

4. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought.

5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

Legislation § 479. 1. Enacted March 11, 1872; based on Practice Act, § 73 (New York Code, § 179), which (1) had, in the introductory paragraph, after the word 'cases," the words arising after the passage of this act, (2) in subd. 1, after the words "his creditors," had the clause, "or when the action is for willful injury to person, to character, or to property, knowing the property to belong to another," and (3) in subd. 3, instead of the words "to prevent its being," had "so that it cannot be." When enacted in 1872, § 479 contained only two additions to the Practice Act; (1) in subd. 2, the word "fraudulent" was added before "misconduct," and (2) in subd. 3, the word "fraudulently" was added before "concealed." 2. Amended by Code Amdts. 1873-74, p. 304.

Citations. Cal. 120/317; 130/68; 138/250; (subd. 1) 130/67; (subd. 2) 130/650; (subd. 3) 130/69; (subd. 5) 130/67. App. 2/756; 5/115; (subd. 1) 5/114; (subd. 4) 2/756. Prac. Act: Cal. (§ 73) 6/240; 42/20.

Arrest of witness: See post, §§ 1993, 1994, 2067-2070.

Arrest for disobedience of order to produce will: See post, § 1302.

Arrest, when ordered in action for forcible entry and detainer: See post, § 1168.

Arrest of person suspected of embezzlement from or concealment of papers of an estate: See post, § 1460.

Exocutor, attachment of, for failure to account: See post, §§ 1627, 1628.
Arrest of debtor, when ordered in supplementary proceedings: See post, § 715.
Arrest of witness disobeying subpoena: See post, § 1993.

Executor, arrest of, to compel attendance: See post, § 1440.

Order for arrest, by whom made.

§ 480. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought.