DEPARTMENT No. 2. [Filed October 22, 1883.] PEOPLE, RESPONDENT, v. APPLEGARTH, APPELLANT. SUMMONS-LAND-CERTIFICATE OF PURCHASE. In action to foreclose and annul a certificate of purchase and right in a location of school lands, for non-payment of interest, the service of summons by publication must be in accordance with the provisions of the Code of Civil Procedure. Appeal from Superior Court, Fresno County. W. D. Grady for respondent. W. D. Tupper for appellant. By the COURT: The service of summons by publication in such a case as this should have been made in accordance with the provisions of the Code of Civil Procedure. The four Codes constitute but one statute (Pol. C., Sec. 4480), and we are of opinion that the provisions of the Political Code must be read in connection with the provisions of the Code of Civil Procedure on this subject. Under the latter provisions there must have been an affidavit for publication of summons and an order of the Court or Judge thereon. The judgment and order are reversed and the cause remanded. DEPARTMENT No. 1. [Filed May 30, 1883.] CALLAGHAN ET AL., APPELLANTS, V. HICKEY ET AL., RESPONDENTS. DEFAULT-RULE-JUDGMENT. The taking and entry of the judgment were in violation of a rule of the trial Court, and the judgment was irregular; being irregular, upon the showing made by defendant, the Court properly set it aside and allowed defendant to answer the complaint. Appeal from Superior Court, San Francisco. Carroll Cook for appellants. R. P. Wright for respondents. In the absence of defendants' counsel the Court overruled a demurrer which had been interposed by the defendant to the plaintiff's complaint, without giving time to the defend ant to answer. But there was a rule of the Court which provided as follows: "Rule XVI: When a demurrer to any pleading is sustained or overruled the adverse party shall have five days within which to amend or answer after receiving notice of the ruling of the Court. When a demurrer to the complaint has been overruled for want of an appearance of the party demurring, or where, in the opinion of the Court, the demurrer was frivolous or interposed for delay, leave will not be given to the party to answer such compaint, except upon condition that such party files and serves a verified answer, or an affidavit of merits, within five days, or such further time as may be allowed by the Court or Judge thereof." Instead of giving the notice required by the rule, the paintiff, immediately after the overruling of the demurrer, took judgment against the defendant, and had the same entered against him. The taking and entry of the judgment were in violation of the rule of the Court, and the judgment was irregular, and being irregular, upon the showing made by the defendant, the Court properly set it aside, and allowed the defendant to answer the complaint. Order affirmed. DEPARTMENT No. 2. [Filed October 23, 1883.] BARBAIRES v. GREGORY. STATEMENT NOTICE-PRACTICE. Upon this application for a writ of mandate to compel the trial Court to settle a statement, it is held that the Court had a right to proceed and settle a statement on the day designated for that purpose, and that defendants' counsel in the action there pending were not entitled to notice that the statement would be settled at the time and place fixed by them for its settlement in a notice given by themselves. By the COURT: It was admitted on the argument by both sides that the defendants in the action Mizner v. Barbaires, et al. prepared and served their statement on the plaintiff's attorney in due time and that he prepared and served on the defendants' counsel plaintiff's proposed amendments to said statement within the time prescribed by the Code, and that defendants' counsel within ten days after receiving said proposed amendments gave the plaintiff's attorney notice that his said proposed amendments were not adopted or allowed by the defendants, and that on a day and hour and at a place named in said notice they would present said statement and proposed amendments to the Judge for settlement. That at the time and place named in said notice the plaintiff's attorney appeared before said Judge, but that no one appeared for the defendants, and the Court proceeded to settle said statement. Before the time fixed in said notice for the settlement of said statement and proposed amendments the same had been filed with the clerk of the Court. The defendants' counsel insists that the fact of his having so filed said statement and proposed amendments, cast the duty upon the Court of giving said defendants' attorneys notice of the time and place of settlement, and that the Court had no power to proceed and settle said statement on the day fixed for its settlement in defendants' attorney's said notice. We think, however, that the Court had a right to proceed and settle said statement on the day designated for that purpose and that defendants' counsel were not entitled to notice that the statement would be settled at the time and place fixed by them for its settlement in a notice given by themselves. Application denied and proceeding dismissed. DEPARTMENT No. 2. [Filed October 23, 1883.] DEAN, APPELLANT, v. BAKER, RESPONDENT. INSOLVENCY. Action on a promissory note, and the defense a discharge in insolvency proceedings. Held, under Section 32 of the Insolvency Act of 1852, error was committed in ruling out plaintiff's offer to prove that defendant G. had willfully, knowingly and intentionally omitted from the schedule of property annexed to his petition in insolvency certain real property held and owned by him at the time of the commencement of the insolvency proceedings. Appeal from Superior Court, Merced county. R. H. Ward and Schell & Treat for respondents. By the COURT: We are of opinion that under Section 32 of the Insolvency Act of 1852, the Court erred in ruling out the offer of the plaintiff to prove that the defendant Grimes had willfully, knowingly and intentionally omitted from the schedule of property annexed to his petition in insolvency certain real property held and owned by him at the time of the commencement of the insolvency proceedings; and for this reason the judgment is reversed and the cause is remanded. IN BANK. [Filed October 23, 1883.] No. 10,891. EX PARTE REIS. REPORTER-COURT. The Superior Courts in San Francisco have power to fix and order paid the compensation of the phonographic reporter in criminal cases, and the duty is imposed upon the County Treasurer to pay the same upon the order of the Court. Habeas Corpus. City and County Attorney and O. P. Evans for petitioner. Clunie & Knight-Contra. MCKINSTRY, J., delivered the opinion of the Court: Immediately prior to the adoption of the Codes the law with respect to phonographic reporters of the Courts in San Francisco was contained in the Act of March 13, 1866, (Stats. 1865-6, p. 232), and the Act of March 28, 1868 (Stats. 1867-8, p. 425). The first Act authorized the District Judges of San Francisco to appoint shorthand reporters, and provided that, in criminal cases, the compensation of the reporter" shall be fixed by the Court, and paid out of the treasury of the county-on the order of the Court." The Act of 1868 provided for the appointment of a reporter by the County Judge of San Francisco, and the payment of his compensation in like manner. Sections 269-271 of the Code of Civil Procedure as they read originally-since amended in particulars which do not effect the question we are considering-authorized each District and County Judge in the State to appoint a shorthand reporter, and provided that "in criminal cases, the compensation of the reporter must be fixed by the Court, and paid out of the treasury of the county in which the case is tried, upon the order of the Court.' * * The statutes of 1866 and 1868, above referred to, were not "expressly continued in force" by the Code of Civil Procedure. They were therefore "repealed and abrogated" (C. C. P., Section 18), unless kept alive by Section 19 of the Political Code. That section reads: "Nothing in either of the four Codes affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force, notwithstanding the provisions of the Codes, except so far as they have been repealed or affected by subsequent laws: "1. All Acts incorporating or chartering municipal corporations, and Acts amending or supplementing such Acts. "2. All Acts consolidating cities and counties, and Acts amending or supplementing such Acts.' * * * It is not necessary to decide whether the Acts of 1866 and 1868 were Acts "affecting" or "amending or supplementing" the Consolidation Act or charter of the City and County of San Francisco. If, by virtue of Section 19 of the Political Code, the Acts of 1866 and 1868 were continued in force, the District Judges and the County Judge, in San Francisco, had power under those Acts to appoint reporters, and to fix their compensation in criminal cases, to be paid by the Treasurer "upon the order of the Court." If, on the other hand, the Acts of 1866 and 1868 were repealed by the Code of Civil Procedure, Sections 269-271 of that Code conferred like powers upon the District Judges and Courts and County Judge and Court. In either case, just before the adoption of the present Constitution, the District Courts and County Court could legally employ the power of appointing a shorthand reporter, fix his compensation in criminal cases, and order such compensation to be paid, and it was the duty of the Treasurer to pay the same "upon the order of the Court." 66 Section 11 of Article 22 of the present Constitution reads: “All laws relative to the present judicial system of the State shall be applicable to the judicial system created by this Constitution until changed by legislation." Of course the former "judicial system" was not made applicable to the judicial system, or series of Courts, created by the Constitution of 1879, for the latter was substituted for the former. By "laws relative to the present judicial system" was intended laws passed to render the working of the system harmonious and effective, which would include the laws passed to secure the preservation of evidence, and the payment of compensation to the officers through whose agency it was preserved. Either the Acts of 1866 and 1868 (if not repealed by the Code of Civil Procedure), or the sections of the Code of Civil Procedure relating to the same subject, were therefore made applicable to the judicial system created by the Constitution now in force; the powers previously conferred upon the District Judges and Courts and County Judge and Court, with respect to the appointment and compensation of reporters, were transferred to the Superior Judges and Courts. |