Witnesses; attendance of, how enforced.

§ 1120. The clerk must issue subpoenas for witnesses at the request of either party, which must be served as other subpoenas; and the superior court shall have full power to issue attachments to compel the attendance of witnesses who have been subpoenaed to attend.

Legislation § 1120. 1. Enacted March 11, 1872. 2. Amended by Code Amdts. 1880, p. 75, substituting "superior court shall have" for "county court has." Citations. Cal. 148/14.

Subpoenas. Issuance, service, etc.: Post, §§ 1985-1987; see also, post, §§ 1988-1990. Disobedience, penalty, etc.: Post, §§ 1991-1992. Compelling attendance of witnesses: Post, §§ 1993 et seq.

Power of court. Adjournment of court.

§ 1121. The court must meet at the time and place designated, to determine such contested election, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until such trial is ended, and may also continue the trial, before its commencement, for any time not exceeding twenty days, for good cause shown by either party upon affidavit, at the costs of the party applying for such continu

ance.

Rules to govern court in trial of contest.

§ 1122. The court must be governed, in the trial and determination of such contested election, by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable; and may dismiss the proceedings if the statement of the cause or causes of the contest is insufficient, or for want of prosecution. After hearing the proofs and allegations of the parties, the court must pronounce judgment in the premises, either confirming or annulling and setting aside such election.

Legislation § 1122. Enacted March 11, 1872.

Citations. Cal. 65/286; 104/664; 121/479; 141/563; 142/373; 148/14. App. 1/129; 7/157.

Certificate of election, to whom must be issued.

§ 1123. If in any such case it appears that another person than the one returned has the highest number of legal votes, the court must declare such person elected. The person declared elected by the superior court shall be entitled to a certificate of election; and, if a certificate has not already been issued to him, the county clerk must immediately make out and deliver to such person a certificate of election signed by him, and authenticated with the seal of the superior court. If the clerk has issued any certificate for the same office to any other person than the one declared elected by the court, such certificate shall be annulled by the judgment.

Legislation § 1123. 1. Enacted March 11, 1872, and then read: "If in any such case it appears that another person than the one returned has the highest

number of legal votes, the court must declare such person elected." by Stats. 1907, p. 649.

Citations. Cal. 128/284; 140/651; 141/416, 561, 563; 148/14.

In case of tie vote, who may contest.

2. Amended

§ 1124. Whenever the body canvassing the returns of any such election declares that no person has received the highest number of votes given for that particular office, any elector of the county, city and county, city or political subdivision of either, in which such office is to be exercised may, within twenty days after such declaration, contest the same by filing with the clerk a written statement setting forth the matters stated in subdivisions one, three and four of section eleven hundred and fifteen, and also the names of the persons shown by such declaration to have received the highest and equal number of votes; which statement must be verified.

A citation must thereupon be issued to and served upon such of said persons receiving an equal number of votes as are not contestants as provided in section eleven hundred and nineteen.

Thereupon like proceedings must be had as are provided in this title for contesting the right of a person declared elected; and all the provis ions of this title so far as applicable thereto must govern in such proceedings.

If the court finds that some person has received the highest number of votes such person must be declared elected.

Legislation § 1124. 1. Addition by Stats. 1901, p. 185; unconstitutional: See note, 5, ante. This unconstitutional statute (1) did not have the words "city and county" after "elector of the county," but (2) had (a) "county" after "filing with the," (b) "specifically" after "setting forth," (c) "an" instead of "the highest and" before "equal number," and (d) after "must be verified," the words "as provided in said section eleven hundred and fifteen"; (3) the sentence beginning "A citation" reading, "A citation must thereupon be issued for and served upon the persons so declared to have received an equal number of votes, as provided in section eleven hundred and nineteen, unless one of such persons is the contestant, in which case the citation need not be issued for or served upon him." 2. Amended and re-enacted by Stats. 1907, p. 678 (approved March 19, 1907). There was another section of the same number, almost identical in language, enacted in 1907, which see, infra. See also Legislation § 1124, infra, for code commissioner's note bearing on same, and also as to original code § 1124.

When canvassing board declares no election, who may contest.

§ 1124. Whenever the body canvassing the returns of any such election declares that no person has received the highest number of votes given for that particular office, any elector of the county, city and county, city, or political subdivision of either, in which such office is to be exercised, may, within twenty days after such declaration, contest the same by filing with the county clerk a written statement, setting forth specifically the matters stated in subdivisions one, three, and four of section eleven hundred and fifteen, and also the names of the persons shown by such declaration to have received an equal number of votes; which statement must be verified as provided in said section eleven hundred

and fifteen. A citation must thereupon be issued for and served upon the persons so declared to have received an equal number of votes, as provided in section eleven hundred and nineteen, unless one of such persons is the contestant, in which case the citation need not be issued for or served upon him. Thereupon like proceedings must be had as are provided in this title for contesting the right of a person declared elected; and all the provisions of this title, so far as applicable thereto, must govern in such proceedings.

Legislation 1124. 1. Addition by Stats. 1901, p. 185; unconstitutional: See note, § 5, ante, and Legislation § 1124, supra. 2. Amended and re-enacted by Stats. 1907, p. 913; the code commissioner saying, "Provides for contest of the result when the canvassing board has declared that a tie exists between candidates. Two sections 1124, almost identical in words, were passed at the session of 1907, one approved March 19, 1907 (1907: 678), and the other approved March 23, 1907 (1907: 913), the latter at the suggestion of the commissioner. The first should be repealed." The original code § 1124, enacted March 11, 1872, related to fees of officers and witnesses, and was repealed by Code Amdts. 1880, p. 76.

Citations. Cal. 148/14.

Costs.

§ 1125. If the proceedings are dismissed for insufficiency, or for want of prosecution, or the election is by the court confirmed, judgment must be rendered against the party contesting such election, for costs, in favor of the party whose election was contested; but if the election is annulled or set aside, judgment for costs must be rendered against the party whose election was contested, in favor of the party contesting the same; provided, that where two or more contested elections are joined for the purpose of recounting votes as in this title provided, the costs shall be apportioned among the parties in the discretion of the court. Primarily each party is liable for the costs created by himself, to the officers and witnesses entitled thereto, which may be collected in the same manner as similar costs are collected in other cases.

Legislation 8 1125. 1. Enacted March 11, 1872. 2. Amended by Code Amdts. 1880, p. 75, substituting "other cases" for "the district court." 3. Amended by Stats. 1907, p. 643, (1) inserting "for" before "want of prosecution," (2) substituting "or" for "and" before "set aside," and (3) adding the proviso at end of first sentence.

Citations. Cal. 65/286; 127/33; 143/549; 148/14. App. 7/154.

Costs. In special proceedings: Ante, §§ 1022, subd. 4, 1024. Generally: Ante, §§ 1021 et seq.

Appeal. Right to office pending.

§ 1126. Either party, aggrieved by the judgment of the court, may appeal therefrom to the district court of appeal, as in other cases of appeal thereto from the superior court; provided, that during the pendency of proceedings on appeal, and until final determination of such proceedings, the person declared elected by the superior court shall be entitled to the office in like manner as if no appeal had been taken.

Legislation § 1126. 1. Enacted March 11, 1872, and then read: "Either party, aggrieved by the judgment of the court, may appeal therefrom to the supreme court, as in other cases of appeal thereto from the county court." 2. Amended by Code Amdts. 1880, p. 75, substituting "superior" for "county." 3. Amendment by Stats. 1901, p. 186; unconstitutional: See note, § 5, ante. 4. Amended by Stats. 1907, p. 649 (approved March 19, 1907), (1) substituting "district court of appeal" for "supreme court," and (2) adding the proviso. 5. Amended by Stats. 1909, p. 975, the only change being to omit the word "the," before "proceedings on appeal." See infra, § 1126; and Legislation § 1126, especially the code commissioner's note.

Citations. Cal. 79/483; 114/98; 125/528; 146/325; 148/14.

Appeals. To supreme court: Ante, § 963. Generally: Ante, §§ 936 et seq.

Appeal.

§1126. Either party aggrieved by the judgment of the court may, within thirty days after notice of the entry thereof, appeal therefrom to the supreme court, as in other cases of appeal thereto from the superior court.

Legislation § 1126. 1. Enacted March 11, 1872. 2. Amended by Code Amdts. 1880, p. 75. 3. Amendment by Stats. 1901, p. 186; unconstitutional: See note, § 5, ante. 4. Amended by Stats. 1907, p. 913; the code commissioner saying, "There were two amended sections 1126 passed at the session of 1907, the one approved March 19, 1907 (1907: 649), the other approved March 23, 1907 (1907: 913). The latter, which was suggested by the commissioner, inserts the words 'within thirty days after notice of entry thereof,' to make the practice definite. The first should be repealed." See supra, § 1126, and Legislation § 1126.

When election void and office vacant.

§ 1127. Whenever an election is annulled, or set aside by the judgment of the superior court, and no appeal has been taken within ten days thereafter, the commission, if any has issued, is void, and the office vacant.

Legislation § 1127. 1. Enacted March 11, 1872, and then read: "Whenever an election is annulled or set aside by the judgment of the county court, and ten days have elapsed and no appeal has been taken, the commission, if any has issued, is void, and the office vacant." 2. Amended by Code Amdts. 1880, p. 76.

Citations. Cal. 111/420; 114/96; 129/327; 134/152; 148/14, 15, 16; 151/ 166, 169; 152/270, 271; (subd. 1) 111/420. App. 1/300; 2/573.

TITLE III.

Summary Proceedings.

Chapter I.

Confession of Judgment without Action.

II.

III.

IV.

§§ 1132-1135. Submitting a Controversy without Action. §§ 1138-1140. Discharge of Persons Imprisoned on Civil Process. §§ 1143-1154. Summary Proceedings for Obtaining Possession of Real Property in Cer. tain Cases. §§ 1159-1179.

§ 1132.
§ 1133.

CHAPTER I.

Confession of Judgment without Action.

Judgment may be confessed for debt due or contingent liability.
Statement in writing, and form thereof.

Judgment may be confessed for debt due or contingent liability.

§ 1132. A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts.

Legislation § 1132. Enacted March 11, 1872; based on Practice Act, § 374 (New York Code, § 382). The last sentence was added when enacted in 1872. Citations. Cal. 134/672. Prac. Act: Cal. (§ 374) 18/581.

Judgment by confession, in justice's court: Ante, §§ 112, subd. 6, 889; and post, 1135.

Statement in writing, and form thereof.

§ 1133. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect:

1. It must authorize the entry of judgment for a specified sum;

2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due;

3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same.

Legislation § 1133. Exacted March 11, 1872; based on Practice Act, § 375 (New York Code, § 383). When § 1133 was enacted in 1872, (1) "must" was changed to "shall" in the four instances, and (2) in subds. 2 and 3, “shall” was omitted before "show."

Citations. Prac. Act: Cal. (§ 375) 18/581.