be had, subject, however, to the power of the court to change the place of trial, as provided in this act.

1. Proceedings for the settlement of an estate and matters connected therewith, are not civil actions within the meaning of this Title II, so as to transfer them from one county to another. Estate of Scott, Cal. Jan. T. 1860.

2. In an action of the nature of quo warranto, the place of trial may properly be laid in any county of the state. People v. Cook, 6 How. Pr. 448.

21. The court may, on motion, change the place of trial in the following cases:

1st. When the county designated in the complaint is not the proper county.

2d. When there is reason to believe that an impartial trial cannot be had therein.

3d. When the convenience of witnesses and the ends of justice would be promoted by the change.

4th. When, from any cause, the judge is disqualified from acting in the action.

1. The granting of a change of venue is discretionary with the court below, subject to review only in cases of gross abuse. The affidavits should state sufficient facts to draw from the court its own inference as to the impartial trial. Sloan v. Smith, 3 Cal.

410.

2. After answer is filed, it is too late to raise objections as to venue in the county. Tooms v. Randall, 3 Cal. 438; Reyes v. Sanford, 5 ib. 117; Pearkes v. Freer, 9 Cal. 642; Millighan v. Brophy, 2 Code R. 118.

3. An appeal does not lie from an order granting a change of venue. goldsby, 6 Cal. 439.

Juan v. In

4. In general, all the defendants should unite in making the motion. Sailly v. Hutton, 6 Wend. 508; Legg v. Dorsheim, 19 ib. 700; Welling v. Sweet, 1 How. Pr. 156; Simmons v. McDougall, 2 ib. 77.

5. There is no distinction between the terms venue " and "place of trial." Hinchman v. Butler, 7 How. Pr. 462.

6. The demand may be made simultaneously with the service of an answer. Mairs v. Remsen, 3 Code R. 138.

7. 3d. In an affidavit for a motion to change the venue, the town as well as the county in which the witnesses reside must be stated. Westbrook v. Merritt, 1 How. Pr.

195; Cook v. Finch, 2 ib. 89; Van Auken v. Stewart, ib. 181.

8.

In an affidavit for change of venue, the defendant must swear that each and every one of the witnesses above named; all and every one is bad. Harris v. Clark, 2 How. Pr. 82; Mills v. Adsit, ib. 83.

9. The venue will not be changed where there are witnesses at the place, as well as witnesses abroad, unless there is great necessity. Austin v. Hinckley, 13 How. Pr. 576.

10. An affidavit on a motion to change the place of trial is defective as to the materiality of the number of witnesses sworn to, if, by a fair construction, the testimony must be considered merely cumulative as to a part of the witnesses named. Price v. Fort Edward Water Works Company, 16 How. Pr. 51.

11. 4th. Where the judge is disqualified to sit in a cause by reason of consanguinity to one of the parties, he cannot sit even by consent of both, and if he do, the judgment will be vacated. Oakley v. Aspinwall, 3 Coms. 547.

TITLE III.

OF THE MANNER OF COMMENCING CIVIL ACTIONS. (a)

22. [1855.*] Civil actions in the district courts, and the

* Statutes of 1855, 303.

(a)

STATUTES OF 1854, 194; WOOD'S DIGEST, 249, ART. 1377.

An Act prescribing the manner of commencing and maintaining suits by or against counties.
Passed May 11, 1854.

1. Suits against a county may be commenced in any court of that county, or in a district court of the judicial district in which such county is situated, in the same manner as suits against private persons; provided, that suits between counties shall be commenced in a court of competent jurisdiction, in any county not a party to such action.

2. In counties where there is a board of supervisors, having an acting chairman or president of such board, the original process and papers shall be served on such chairman or president, in the same manner as upon private persons; when there is no such chairman or president, they shall in like manner be served on the county judge of the county.

3. Immediately on the service of such process, it shall be the duty of the officer so served, to deliver such process, and all papers accompanying the same, to the district attorney for such county, whose duty it shall be to defend such cause or proceeding on the part of such county, until final judgment or compromise of such suit or proceeding. 4. Suits brought for or against a county, shall be by or in the name of such county.

STATUTES OF 1855, 56, §24; WOOD'S DIGEST, 696, ART. 3333.

24. No person shall sue a county in any case, or for any demand, unless he or she shall first present his or her claim or demand to the board of supervisors for allowance;

i

county courts, shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought, and the issuing of a summons thereon. Provided, that after the filing of the complaint, a defendant in the action may appear, answer or demur, whether the summons has been issued or not, and such appearance, answer or demurrer, shall be deemed a waiver of summons.

1. Where a summons was issued and served in the morning, by which the defendants were cited to appear and answer the complaint in the court of First Instance at 10 o'clock, and judgment was rendered against them at 9 o'clock on the morning of the same day: held, that the judgment was irregular, and should be reversed, notwithstanding the court offered them permission to come in at a subsequent day, and make their defense. Parker v. Shephard, 1 Cal. 131.

2. In the absence of any statute to that effect, the state cannot be sued, and a judgment against it is erroneous. People v. Talmage, 6 Cal. 256; Myers v. English, 9 Cal.

341.

3. Where a complaint was filed on the thirtieth day of October, 1856, and no summons was issued thereon, and an amended complaint was filed on the twenty-sixth of January, 1857, and summons issued thereon, held, that the suit was not commenced until the issuing of the summons. Green v. Jackson, 10 Cal. 373.

4. Lodging the summons with the sheriff with intent that it should be served, is sufficient. Gregory v. Wiener, 1 Code R. N. S. 210.

23. [1860.*] The clerk shall indorse on the complaint, the day month and year the same is filed; and at any time within one year after the filing of the same, the plaintiff may have a summons issued.

*Statutes of 1860, 000.

and if they fail or refuse to allow the same, or some part thereof, the party feeling aggrieved may sue the county and if the party suing recover in the action more than said board allowed or offered to allow, said board shall allow the amount of the said judgment and costs as a just claim against the county; but if the party suing shall not recover more than the board shall have offered to allow him or her, then costs shall be recovered against him or her by the county. All claims for services and items of account of a similar nature, presented by any one person to the board of supervisors at any session of the board, shall be included in one account, and so considered by the board, unless by consent of the board.

1. The provisions of these statutes sustained. Price v. Sacramento County, 6 Cal. 255; Gilman v. Contra Costa county, ib. 676; 8 ib. 52; County of Yuba v. Adams, 7 Cal. 35; McCann v. Sierra county, ib. 121; Placer county v. Astin, 8 Cal. 303.

2.

These statutes were passed to obviate the decision of Hunsacker v. Borden, 5 Cal. 288.

The summons shall be signed by the clerk, and directed to the defendant, and be issued under the seal of the court.

24. [1854, 1859.*] The summons shall state the parties to the action, the court in which it is brought, the county in which the complaint is filed, the cause and general nature of the action, and require the defendant to appear and answer the complaint within the time mentioned in the next section, after the service of the summons, exclusive of the day of service, or that judgment by default will be taken against him, according to the prayer of the complaint, briefly stating the sum of money or other relief demanded in the complaint; and the clerk shall also indorse on the summons the names of the plaintiff's attorneys.

1. If the summons be radically defective, it will not support a judgment by default. The State v. Woodlief, 2 Cal. 241.

2. A default admits every issuable fact stated in the complaint. Harlan v. Smith, 6 Cal. 173.

3. Where a defendant is sued as John, service was returned upon James, and judgment entered against J.: held, to amount to error, unless the person served is shown to be the person sued. Sutter v. Cox, 6 Cal. 415.

4. A judgment rendered upon irregular process can be attacked directly, but not collaterally. Whitwell v. Barbier, 7 Cal. 54; Dorente v. Sullivan, ib. 279.

5. In an action where the complaint alleges fraud, the summons must apprise the defendant that upon a failure to answer, the judgment will be taken against him for fraud, or it will not warrant a judgment by default embodying this charge. Porter v. Herman, 8 Cal. 619.

6. The court may permit a summons to be amended. Abbott, 69.

McDonald v. Walsh, 5

25. The time in which the summons shall require the defendant to answer the complaint, shall be as follows:

1st. If the defendant is served within the county in which the action is brought, ten days.

2d. If the defendant is served out of the county, but in the district in which the action is brought, twenty days.

3d. In all other cases, forty days.

1. A judgment will be reversed on appeal, rendered before the time of answering has expired. Burt v. Scrantom, 1 Cal. 416.

*Statutes of 1859, 39.

26.

There shall also be inserted in the summons a notice, in substance as follows:

1st. In an action arising on contract for the recovery only of money or damages, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint.

2d. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief demanded therein.

1. A mistake in the form of the summons is waived by the unconditional appearance of the defendant. Dix v. Palmer, 5 How. Pr. 233; 3 Code R. 214.

2. The cause of action stated in the complaint should control the form of the notice in the summons. Voorhies v. Scofield, 7 How. Pr. 51.

3. 2d. In an action for breach of promise of marriage, the summons should state that in default of answer, the party would apply to the court for the relief demanded. Davis v. Bates, 6 Abbott, 15.

27. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, may file with the recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.

28. [1854, 1855, 1859, 1860.*] The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by a person specially appointed by him, or appointed by a judge of the court in which the action is brought, or by any white male citizen of the United States over twenty-one years of age, who is competent to be a witness on the trial of the action, except as hereinafter provided; a copy of the complaint, certified by the clerk, shall be served with the summons. When the summons is served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of the copy of the complaint, to the office of the clerk from which the summons issued.

* Statutes of 1860, 000.