1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.

2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.

3. After judgment, to carry the judgment into effect.

After judgment to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment.

5. In the cases when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.

6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity. [C. L. § 3330.

Cal. C. Civ. P. ? 564*.

Receiver may be appointed for bank failing to keep up reserve, etc., 377, 378, 390. Receiver for building and loan association, ?? 399, 400; for insurance company, 2 415; for loan, trust, and guaranty association, 430. Receiver of property of judgment debtor, 3281.

Courts of equity have no power to appoint a receiver for a corporation in the absence of a statute conferring such power. Davis v. Flagstaff

Mining Co., 2 U. 74.

Allegation of a bill in chancery set out and held sufficient to authorize the appointment of a receiver. U. S. v. The Church, 5 U. 361; 15 P. 473.

When corporations are mismanaged and their property misappropriated by their officers, and a continuance thereof threatened, receivers will be appointed for them. Stephens v. S. Ogden L. B. & I. Co., 14 U. 232; 47 P. 81.

3115. Appointment on dissolution of corporation. Upon the dissolution of any corporation the district court of the county in which the corporation carries on its business, or has its principal place of business, on application of any creditor of the corporation, or of any stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other property that shall remain over, among the stockholders or members. [C. L. § 3331.

Cal. C. Civ. P. 2 565.

Voluntary dissolution of corporations, 22 3661-3667.

3116. Party in interest appointed only on consent. Undertaking on ex parte application. No party or attorney, or person interested in the action, can be appointed receiver therein, without the written consent of the parties, filed with the clerk. If a receiver be appointed upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver, and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking. [C. L. § 3332. trust, and guaranty association may act as receiver, Qualifications of sureties generally, 23493. Loan, ? 424.

Cal. C. Civ. P. 2 566.

3117. Oath and undertaking of receiver. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the court or judge, execute an undertaking to such person and in such sum as the court or judge may direct, to the effect that he will

faithfully discharge the duties of receiver in the action, and obey the orders of the court therein. [C. L. § 3333.

Cal. C. Civ. P. ? 567.

3118. Powers of receivers. The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, to collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize. [C. L. § 3334.

Cal. C. Civ. P. 2 568.

The receiver of the late Church of Jesus Christ, etc., might attach any assignment of property made prior to the dissolution of the church which was illegal as to third parties. U. S. v. The Church, 5 U. 538; 18 P. 35.

For a general discussion of the rights, powers,

and duties of a receiver and his attorney, see U.S. v. The Church, 6 U. 9; 21 P. 503-524.

For a general discussion regarding a reasonable compensation to be allowed a receiver for his services in handling property of the value of $750,000, see Id.

3119. Funds invested by consent on order of court. Funds in the hands of a receiver may be invested upon interest, by order of the court; but no such order can be made, except upon the consent of all the parties to the action. [C. L. § 3335.

Cal. C. Civ. P. 569.

CHAPTER 25.

DEPOSIT IN COURT.

3120. When deposit or delivery of money required. When it is admitted by the pleading, or shown upon the examination of a party, that he has in his possession or under his control, any money or other thing capable of delivery, which being the subject of litigation is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court, or delivered to such party, upon such conditions as may be just, subject to the further direction of the court. [C. L. § 3336.

Cal. C. Civ. P. 572.

3121. Id.
Id. With whom deposited.

Liability of treasurer.

If the money is deposited in court, it must be paid to the clerk, who must deposit it with the county treasurer, by him to be held subject to the order of the court. For the safe keeping of the money deposited with him, the treasurer is liable on his official bond. [C. L. § 3337*.

Cal. C. Civ. P. 2 573.

3122. Id. Disobedience.

Money paid to clerk or authorized deputy, ? 3484. Procedure. Whenever 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. [C. L. § 3338.

Cal. C. Civ. P. 574.

CHAPTER 26.

PROVISIONAL REMEDIES ON BEHALF OF DEFENDANT.

3123. Defendant asking affirmative relief may have provisional remedies. When the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, his right to a provisional

remedy is the same as in an action brought by him against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment; and for the purpose of applying to such a case the provisions of this code relating to provisional remedies, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counterclaim so set forth in the answer is deemed the complaint.

Mont. Civ. P. 2 981.

Counterclaim, ?? 2968-2970.

CHAPTER 27.

ISSUES, MODE OF TRIAL, AND POSTPONEMENT.

3124. Issues defined. Law, fact. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds:

3125. Issue of law arises upon a demurrer. An issue of law arises upon a demurrer to the complaint, answer, or reply, or to some part thereof. [C. L. § 3347*.

Cal. C. Civ. P. 2 589*.

or,

3126. Issue of fact arises, how. An issue of fact arises:

1. Upon a material allegation in the complaint controverted by the answer;

2. Upon a material allegation of any counterclaim in the answer controverted by the reply; or,

3. Upon a material allegation of new matter in the answer, not requiring a reply, unless an issue of law is joined thereon; or,

4. Upon a material allegation of new matter in the reply, unless an issue of law is joined thereon. [C. L. § 3348*.

Wis., S. & B. An. S. (1889) 2839; Cal. C. Civ. P. 590*.

3127. Issue of law tried by court, unless referred. An issue of law must be tried by the court, unless it is referred upon consent. [C. L. § 3349.

Cal. C. Civ. P. 2591.

All questions of law to be decided by the court, ? 3479.

3128. Issue of fact, how tried. Issue of law first disposed of. In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact may be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code. Where in these cases there are issues both of law and fact, the issue of law must first be disposed of. In other cases, issues of fact must be tried by the court subject to its power to order any such issue to be tried by a jury or to be referred to a referee, as provided in this code. [C. L. § 3350*.

Cal. C. Civ. P. ? 592*.

3178.

Questions of fact to be tried by jury,
Special issues may be tried by jury, order, ? 2854.
When reference may be directed, ?? 3172, 3173.

Parties are entitled under sec. 3350, C. L. 1888, to jury trial of issues of fact in mandamus proceedings. Chamberlain v. Warburton, 1 U. 267.

When in ejectment two defenses, one legal, one equitable, are interposed, the equitable should first be disposed of. Kahn v. Old Tel. Mining Co., 2 U. 174. Steele v. Boley, 7 U. 64; 24 P. 755. In an equity case the court has the power, under

our system of practice, to submit special issues to a jury, and a verdict thereon when rendered is only advisory and not binding upon the court. Smith v. Richardson, 2 U. 424.

The power of a court of chancery is the same as under the old equity practice, and the power to disregard or modify the findings of a jury in an equity case is inherent in the court, the object of the verdict being not to decide the issues, but simply to instruct or advise the conscience of the chancellor. Id.

In an action for specific performance, where such

relief cannot be granted because plaintiff had previously refused to accept such performance, the court should submit the case to a jury instead of itself assessing damages. Goldthwait v. Lynch, 9 U. 186; 33 P. 699.

The forms of actions being abolished, a defend

ant may plead as many defenses to one action both legal and equitable as he may have, and where an equitable defense is pleaded it should be determined by the court before a jury is called to try the issues at law. Kimball v. McIntyre, 3 U. 77; 1 P. 167.

3129. Jury trial must be demanded. Deposit. Failure to appear waives demand. Either party to an action of the kind enumerated in the preceding section who desires a jury trial of the same, or of any issue thereof, must demand it, either by written notice to the clerk prior to the time of setting such action for trial, or within such reasonable time thereafter as the court may order, or orally in open court at the time of such setting, and must at the same time deposit with the clerk the sum of five dollars; whereupon it shall be the duty of the court to order jurors to be in attendance at the time set for the trial of the cause. Money paid in accordance with this section shall be taxable as costs in the action. But the failure of a party who has demanded a jury to appear at the trial, shall be deemed a waiver of such demand. [C. L. § 3378*; '96, p. 567*.

All issues triable by the court, 23167. Deposit of jury fee, 1002. Jury waived unless demanded, Con. art. 1, sec. 10; 3167.

Where record shows trial by the court without jury being demanded, on appeal waiver of trial by

jury will be presumed.
33 P. 221.

Perego v. Dodge, 9 U. 3; Refusal of jury trial when demanded in a proper case is error. Goldthwait v. Lynch, 9 U. 186; 33 P. 699.

3130. Separate trial or change in order of issues, discretionary. A separate trial between the plaintiff and one or more defendants, of some or all of the issues of fact, or a trial of some or all the issues of law, or a change in the order of disposition of the issues, may be directed by the court, in its discretion. Mont. Civ. P. 1035. Kan. (1889) ? 4363*.

3131. Calendar, how made up. Dropping and restoring cases. The clerk must enter causes upon the calendar of the court according to the date of issue. Causes once placed on the calendar must remain until finally disposed of; but causes may be dropped from the calendar by consent of parties, or by order of the court or judge, and may be again restored upon notice. [C. L. § 3351.

Cal. C. Civ. P. ¿ 593*.

3132. Either party may bring issue to trial. Absence of party. Either party may bring an issue to trial, or to a hearing, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case and take a dismissal of the action, or a verdict or judgment, as the case may require. [C. L. § 3352.

Cal. C. Civ. P. 2594.

Dismissal of action, 3181.

3133. Continuance for absence of evidence, etc. Affidavit required. Admission. A motion to postpone a trial on the ground of the absence of evidence, can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed; and upon terms, the court may, in its discretion, upon good cause shown, postpone a trial or proceeding upon other grounds than absence of evidence. [C. L. § 3353*.

Mont. Civ. P. 1039. Cal. C. Civ. P. 2 595*.
Costs on postponement, ? 3346.

An order of the court below refusing a continuance cannot be reversed unless there has been an abuse of discretion. Almy v. Hess, 2 U. 223. Charter Oak Ins. Co. v. Gisborn, 5 U. 319; 15 P. 253.

Motion for continuance will be overruled where there is no affidavit showing the facts or the testimony expected to be given. McGrath v. Tallent, 7 U. 256; 26 P. 574.

For affidavit held insufficient to justify continuance, see Almy v. Hess, 2 U. 223.

3134. Id. Testimony of witnesses present may be taken. Order when mining case continued. The party obtaining a postponement of a trial must, if required by the adverse party, consent that the testimony of any

witness of such adverse party, who is in attendance, be then taken by deposition before a judge or clerk of the court in which the case is pending, or before such other officer as the court may direct, which must accordingly be done, and the testimony so taken may be read on the trial with the same effect, and subject to the same objections, as if the witnesses were produced. In actions involving the title to mining claims, if it be made to appear to the satisfaction of the court that in order that justice may be done and the action fairly tried on its merits, it is necessary that further developments should be made, and that the party applying has been guilty of no laches and is acting in good faith, the court shall grant the postponement of the trial of the action, giving the party a reasonable time in which to prepare for trial. And in granting such postponement, the court may, in its discretion, annex as a condition thereto, an order that the party obtaining such postponement shall not, pending the trial of the action, remove from the premises in controversy any valuable quartz, rock, earth, or ores, and for any violation of an order so made, the court, or judge thereof, may punish for contempt as in the cases of violation of an order of injunction, and may also vacate the order of postponement. [C. L. § 3354.

Cal. C. Civ. P. 2 596*.

When testimony officially reported may be used at subsequent trial, 3475. Order for survey of

mining claim, ?? 3515, 3516. Taking of depositions, generally, 22 3455-3465.

CHAPTER 28.

TRIAL BY JURY.

3135. Clerk to draw jury. When an action is called for trial by jury, the clerk must draw from the trial jury box the ballots containing the names of the jurors, until the jury is completed or the

Cal. C. Civ. P. 600.

Number of jurors, Con. art. 1, sec. 10; 1295. Selection, drawing, and summoning of jury, ?? 1306-1320. Impaneling of jury in criminal cases, 4816-4844. When juror may be excused, ? 1300. The court may, when necessary and there is no regular jury in attendance, impanel a jury to try a case properly set and ready for trial. Bennett v. Tintic Iron Co., 9 U. 291; 34 P. 61.

ballots are exhausted. [C. L. § 3355.

On the day set for trial, defendant requested a postponement, which was granted, the court stating that he would issue a special venire if the regular jury were discharged by that day. The defendant made no objection at the time, and the regular jury having been discharged a special venire was summoned for the case; held, that defendant was estopped from objecting to such jury. Id.

3136. Challenge defined. Of two kinds. A challenge is an objection made to the trial jurors and is of two kinds:

1. To the panel.

2. To an individual juror. [C. L. § 5004.

Cal. Pen. C. 1055.

3137. Parties united must join in challenge.

Either party may

challenge the jurors, but where there are several parties on either side, they must join in a challenge before it can be made. [C. L. § 3356.

Cal. C. Civ. P. 2 601*.

3138. Panel defined. The panel is a list of jurors returned to serve at a particular court, or for the trial of a particular action. [C. L. § 5006.

Cal. Pen. C. 1057.

3139. Challenge to panel defined. A challenge to the panel is an objection made to all the jurors returned. [C. L. § 5007.

Cal. Pen. C. ? 1058*.

3140. Id. Upon what founded. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury, or on the intentional omission of the proper officer to summon one or more of the jurors drawn. [C. L. § 5008.

Cal. Pen. C. ? 1059*.

Drawing, return, summoning, ?? 1306–1320.