had, (1) in the first line, the words "moneys are" instead of "money is," and (2) the word "shall" instead of "must," in all instances. Citations. Cal. 51/446; 73/269. App. 5/484. Manner of enforcing the order. § 574. Whenever, in the exercise of its authority, a court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, beside punishing the disobedience, may make an order requiring the sheriff to take the money, or thing, and deposit or deliver it in conformity with the direction of the court. Legislation § 574. Enacted March 11, 1872. Punishing the disobedience. Contempt: Post, § 1209. VIII. II. III. §§ 588-596. §§ 600-604. Conduct of Trial. §§ 607-619. §§ 624-628. §§ 638-645. §§ 646-663a. The Verdict. Trial by Court. §§ 631-636. References and Trials by Referees. Provisions Relating to Trials in General. Article I. Exceptions. §§ 646-653. II. New Trials. §§ 656-663a. Manner of Giving and Entering Judgment. §§ 664-680. CHAPTER I. Judgment may be for or against one of the parties. Judgment in General. $ 577. $ 578. Judgment defined. Judgment may be against one party and action proceed as to others. Action may be dismissed, or nonsuit entered. Dismissal of action for failure to issue summons, when. All other judgments are on the merits. Dismissal of actions. Judgment defined. § 577. A judgment is the final determination of the rights of the parties in an action or proceeding. Legislation § 577. 1. Enacted March 11, 1872; based on Practice Act, § 144 (New York Code, § 245), which had, (1) the word "the" instead of "an," before "action," and (2) at end of section, the words, "and may be entered in term or vacation." 2. Amendment by Stats. 1901, p. 143; unconstitutional: See note, 5, ante. Citations. Cal. 63/508; 80/170; 89/486; 93/651; 98/639; 99/282; 119/ 440; 125/68; 128/167; 133/108; 134/124, 468; 147/128. Prac. Act: Cal. (144) 3/215; 12/468; 20/55, 56; 27/234; 28/85; 44/87; 46/208. Judgment. Confession by: Post, § 1132. Default, by: Post, § 585. Demurrer, on: Post, § 636. Estoppel as to: Post, § 1908. Generally: Post, § 664. Nonsuit: Post, § 581. On trial by court: Post, § 633. On trial by jury: Post, § 664. Order, defined: Post, § 1003. Judgment in special proceeding, defined: See post, § 1064. Judgment may be for or against one of the parties. § 578. 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. Legislation § 578. Enacted March 11, 1872; re-enactment of Practice Act, 145 (New York Code, § 274). Citations. Cal. 58/607; 71/447, 451; 78/256; 82/583; 110/492; 136/71, 802; 146/575; 147/437; 149/155, 636; 152/200, 645; 153/423. Prac. Act: Cal. (§ 145) 18/400; 82/583; 153/423. Striking out party: Ante, § 473. Fresh parties. Bringing in: Ante, § 389. Service on one defendant out of several. Effect of: Ante, § 414. Joint debtors. Proceedings against: Post, §§ 989 et seq. Joining persons severally liable on same instrument: Ante, § 383. Judgment may be against one party and action proceed as to others. Legislation § 579. Enacted March 11, 1872; re-enactment of Practice Act, § 146 (New York Code, § 274). Citations. Cal. 103/36; 136/302; 150/774. App. 2/403. Prac. Act: Cal. (§ 146) 6/183; 24/382. Striking out party: Ante, § 473. Fresh parties. Bringing in: Ante, § 389. Service on one defendant out of several. Effect of: Ante, § 414. Joint debtors. Proceedings against: Post, §§ 989 et seq. Joining persons severally liable on same instrument: Ante, § 883. The relief to be awarded to the plaintiff. § 580. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. Legislation § 580. Enacted March 11, 1872; based on Practice Act, § 147 (New York Code, § 275), substituting "cannot" for "shall not." Citations. Cal. 53/288; 57/326; 63/106; 65/55, 353; 70/333; 72/249; 75/ 522; 78/40; 99/68, 244, 418; 100/625; 105/453; 107/255; 110/492; 116/324, 877; 117/220; 120/43; 122/398; 125/312, 313, 557, 558; 126/341, 342, 424; 128/319; 129/179; 130/406; 131/48; 132/697, 698; 133/230, 494; 136/29; 141/364; 142/63; 144/67, 775; 146/11, 416; 150/102. App. 1/394. Prac. Act: Cal. (§ 147) 11/19; 20/92; 28/294; 32/650; 34/81; 37/528; 41/256; 117/220. Action may be dismissed, or nonsuit entered. § 581. An action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself, by written request to the clerk, filed with the papers in the case, at any time before the trial, upon payment of his costs; provided, a counterclaim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant. If a provisional remedy has been allowed, the undertaking must 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 either party fails to appear on the trial, and the other party 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 dismissals mentioned in subdivisions one and two hereof are made by entry in the clerk's register. The dismissals mentioned in subdivisions three, four, and five of this section must be made by orders of the court entered upon the minutes thereof, and are effective for all purposes when so entered; but the clerk of the court must note such orders in his register of actions in the case. Legislation § 581. 1. Enacted March 11, 1872; based on Practice Act, § 148, which read: "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 counterclaim 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." When enacted in 1872, § 581 read the same, except for the substitution (1) of "must" for "shall," after "undertaking," in subd. 1, and (2) of "is" for "shall be," after "subdivisions." 2. Amended by Code Amdts. 1877-78, p. 100, (1) substituting the word "provided" for "if," before "a counterclaim"; (2) inserting the clause "or affirmative relief sought by the cross-complaint or answer of defendant." 3. Amended by Stats. 1885, p. 76, (1) in subd. 4, omitting "final" before "submission"; (2) adding subd. 6, which read: "By the court when, after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months." 4. Amended by Stats. 1889, p. 398, (1) in subd. 4, adding "final" before "submission"; (2) inserting, before "is made," in subd. 6, the words "of this"; (3) adding subd. 7, which read, "And no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and served, and return thereon made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years." 5. Amended by Stats. 1895, p. 31, (1) inserting "section" after "this," in the second paragraph of subd. 6; (2) changing the section, after the words "within one year," in subd. 7, to read, "and all such actions shall be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such actions may be prosecuted, if appearance has been made by the defendant or defendants within said three years, in the same manner as if summons had been issued and served." 6. Amended by Stats. 1897, p. 98, (1) inserting, in subd. 1, the words "by written request to the clerk, filed among the papers in the case"; (2) changing the last paragraph of subd. 6, and adding a new paragraph, both of which comprise the two sentences following: "The dismissals mentioned in subdivisions one and two hereof are made by entry in the clerk's register. The dismissals mentioned in subdivisions three, four, five, and six of this section, shall be made by orders of the court entered upon the minutes thereof, and shall be effective for all purposes when so entered, but the clerk of the court shall note such orders in his register of actions in the case." 7. Amendment by Stats. 1901, p. 143; unconstitutional: See note, § 5, ante. 8. Amended by Stats. 1907, p. 711; the code commissioner saying, "The amendment to subd. 8 authorizes the plaintiff, as well as the defendant, to ask for the dismissal of an action if his adversary does not appear at the trial. Subd. 6, concerning the dismissal of an action because the party entitled to judgment neglects to make demand therefor within six months, is omitted, because the changes made in § 664 require the judgment to be entered by the clerk without any demand by either party. The matters contained in former subd. 7 are, with certain changes, embraced in the new § 581a." Citations. Cal. 58/190; 77/84; 82/415; 93/509, 511; 99/339; 102/614; 113/304, 306; 118/224; 125/300, 392; 126/300, 301; 127/523, 524; 129/250, 672; 132/83, 436; 135/672; 136/316, 554, 555; 137/272, 657; 140/34, 174; 141/9, 55, 655, 667; 144/655; 146/750; 147/502, 605; 148/699; 152/347, 348, 849: (Subd. 1) 53/32; 65/97, 266; 66/350; 67/590; 76/373; 82/415; 90/216, 391; 106/62; 115/155; 116/667; 118/221; 125/264; 132/434, 435; 134/62; 135/668; 136/316, 553; 139/94; 140/377; 141/284; 145/570; 150/155, 157, 158; (subd. 2) 104/667; 150/156; (subd. 3) 77/327; 122/384; 125/214; 126/ 298; 129/672; 149/492; (subd. 4) 56/588; 91/356; 123/386; 126/299; 129/ 672; (subd. 5) 53/370, 388; 113/692; 129/672; (subd. 6) 75/565; 77/459; 97/425; 110/227; 126/247, 324, 609; 129/672; 153/180; (subd. 7) 99/385; 100/512; 113/303; 119/177; 125/299; 128/256; 132/82, 455, 507, 508; 137/ 271; 141/7, 578, 655; 144/427; 148/672; 149/693, 694; 153/693, 695, 696, 697. App. 2/166; 3/126, 127; 5/91, 93, 275, 584, 585, 747; (subd. 5) 5/707; (subd. 6) 2/223; 5/138; (subd. 7) 3/452; 5/91; 6/541, 544, 545. Prac. Act: Cal. (§ 148) 13/637; 18/77; 20/93; 22/102, 465; 25/276, 277; 28/169; 35/ 802; 47/546, 547; 126/299; 135/668. Dismissal for want of prosecution: See post, § 583. Dismissal in justice's court: See post, § 890. Dismissal of election contest: See post, §§ 1117, 1122, 1125. Trial. Either party may bring on: Post, § 594. Dismissal of action for failure to issue summons, when. § 581a. No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such actions may be prosecuted, |