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3753. Procedure when committed in presence of court. contempt is committed in the immediate view and presence of the justice, it may be punished summarily; to that end an order must be made reciting the facts as they occurred, and adjudging that the person proceeded against is thereby guilty of contempt, and that he be punished as therein prescribed. [C. L. § 3612.

Cal. C. Civ. P. 2 907.

3754. Id. When not committed in presence of court. When the contempt is not committed in the immediate view and presence of the justice, a warrant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought before the justice immediately, when an opportunity to be heard in his defense or excuse must be given. The justice may thereupon discharge him, or may convict him of the offense. [C. L. § 3613.

Cal. C. Civ. P. 2 908.

3755. Penalty. A justice may punish for contempts by fine or imprisonment, or both; such fine not to exceed in any case one hundred dollars, and such imprisonment one day. [C. L. § 3614.

Cal. C. Civ. P. 2 909.

3756.

Entry in docket.

The conviction, specifying particularly the offense and the judgment thereon, must be entered by the justice in his docket. [C. L. § 3615.

Cal. C. Civ. P. ¿ 910.

DOCKET OF JUSTICE.

3757. Justice to keep docket. Entries. Every justice must keep a book, denominated a "docket," in which must be entered:

1. The title of every action or proceeding.

The object of the action or proceeding, and, if a sum of money be claimed, the amount thereof.

2.

3. The date of the service of the summons and the time of its return; and if an order to arrest the defendant be made, or a writ of attachment be issued, a statement of the fact.

4. The time when the parties, or either of them, appear, or their non-appearance, if default be made; a minute of the pleadings and motions, if in writing, referring to them, if not in writing, a concise statement of the material parts of the pleadings.

5.

Every adjournment, stating on whose application and to what time. The demand for a trial by jury, when the same is made, and by whom made, the order for the jury, and the time appointed for the return of the jury, and for the trial.

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7. The names of the jurors who appear and are sworn, and the names of all witnesses sworn, and at whose request.

8. The verdict of the jury and when received. If the jury disagree and are discharged, the fact of such disagreement and discharge.

9. The judgment of the court, specifying the costs included, and the time when rendered.

10. An itemized statement of the costs. 11.

The issuing of the execution, when issued, and to whom; the renewals thereof, if any, and when made; and a statement of any money paid to the justice, and when and by whom.

12. The receipt of a notice of appeal, if any be given, and of the appeal bond, if any be filed. [C. L. § 3616*.

Cal. C. Civ. P. 2 911*.

3758. Id. Entries, when and where made. Prima facie evidence. The several particulars of the last section specified must be entered under the title of the action to which they relate, and, unless otherwise in this code provided, at the time when they occur. Such entries in a justice's docket, or a transcript

thereof, certified by the justice, or his successor in office, are prima facie evidence of the facts so stated. [C. L. § 3617*.

Cal. C. Civ. P. 2 912.

3759. Index to docket. A justice must keep an alphabetical index to his docket, in which must be entered the names of the parties to each judgment, with a reference to the page of entry. The names of the plaintiffs must be entered in the index in the alphabetical order of the first letter of the family name. [C. L. § 3618.

Cal. C. Civ. P. 2 913.

3760. Dockets and files delivered to successor. Every justice of the peace, upon the expiration of his term of office, must deposit with his successor his official dockets and all papers filed in his office, as well his own as those of his predecessors or any other which may be in his custody, to be kept as public records. [C. L. § 3619.

Cal. C. Civ. P. 2 914.

3761. Id. Where deposited when vacancy occurs. If the office of a justice becomes vacant by his death or removal from the precinct or city, or otherwise, before his successor is elected and qualified, the docket and papers in possession of such justice must be deposited in the office of some other justice in the precinct or city, to be by him delivered to the successor of such justice. If there is no other justice in the precinct or city, then the docket and papers of such justice must be deposited in the office of the county clerk of the county to be by him delivered to the successor in office of such justice. [C. L. § 3620. Cal. C. Civ. P. 2 915*.

3762. Id. Jurisdiction of successor. Who is successor. Any justice with whom the docket of his predecessor or of another justice is deposited, has and may exercise over all actions and proceedings entered in such docket, the same jurisdiction as if originally commenced before him. In case of the creation of a new county, or of the change of the boundary between two counties, any justice into whose hands the docket of a justice formerly acting as such within the same territory, may come, is for the purposes of this section considered the successor of such former justice. [C. L. § 3621.

Cal. C. Civ. P. 916.

3763. In case of vacancy, etc. The justice elected or appointed to fill a vacancy is the successor of the justice whose office became vacant before the expiration of a full term. When a full term expires, the same or another person elected to take the office in the same precinct or city, from that time is the successor. [C. L. § 3622.

Cal. C. Civ. P. ? 917*.

3764. Id. When two or more equally entitled. When two or more justices are equally entitled, under the last section, to be deemed the successors in office of the justice, the board of county commissioners for that county must by resolution spread upon its minutes, designate which justice is the successor of a justice going out of office, or whose office has become vacant. [C. L. § 3623*. Cal. C. Civ. P. ? 918*.

3765. Subpoenas, etc., issued to any part of county. Justices of the peace may issue subpoenas in any action or proceeding in the courts held by them, and final process on any judgment recovered therein, to any part of the county. [C. L. § 3624.

Cal. C. Civ. P. 919.

Witnesses, etc., in district court, 22 3412-3441.

3766. Papers, except subpoenas, must be filled out by justice. Every paper made or issued by a justice, except a subpoena, must be issued without a blank to be filled by another, otherwise it is void. [C. L. § 3625.

Cal. C. Civ. P. ? 920*.

3767. Justice to receive and disburse money. Justices of the peace must receive from the sheriff or constables of their county all money collected on any process or order issued from their courts respectively, and must pay the same, and all money paid to them in their official capacity, over to the parties entitled or authorized to receive it, without delay. [C. L. § 3626.

Cal. C. Civ. P. 921.

3768. Another justice to attend in case of disability. In case of the sickness, or other disability, or necessary absence of a justice on a return day of a summons, or at the time appointed for a trial, another justice of the same precinct or city, or an adjoining precinct of the county, may, at his request, attend in his behalf, and thereupon is vested with the power, for the time being, of the justice before whom the summons was returnable. In that case, the proper entry of the proceedings before the attending justice, subscribed by him, must be made in the docket of the justice before whom the summons was returnable. If the case is adjourned, the justice before whom the summons was returnable may resume jurisdiction. [C. L. § 3627.

Cal. C. Civ. P. 2 922.

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3769. Security for costs may be required. Justices of the peace may in all cases require a deposit of money or an undertaking as security for costs of court, before filing the complaint. If the plaintiff is a non-resident, however, the defendant may demand that the plaintiff make a deposit of money or give an undertaking with two good sureties in any sum not exceeding one hundred dollars, as the court may determine, for payment of costs adjudged against the plaintiff; and all proceedings shall stop unless such undertaking is given, and if not given within twenty days, the suit shall be dismissed without prejudice. [C. L. § 3628.

Cal. C. Civ. P. 2 923*.

Qualifications of sureties generally, 3493.

3770. Prevailing party entitled to costs. The prevailing party in justices' courts is entitled to costs of the action, and also of any proceedings taken by him in aid of an execution issued upon any judgment recovered therein. [C. L. § 3629.

Cal. C. Civ. P. 924.

Costs on appeal from justice's court, 3343. No cost bill need be filed in justice's courts, 3352.

3771. Justices' courts of limited jurisdiction, etc. Provisions of code applicable. Justices' courts being courts of peculiar and limited jurisdiction, only those provisions of this code which are, in their nature, applicable to the organization, powers, and course of proceedings in justices' courts, or which have been made applicable by special provisions in this code, are applicable to justices' courts and the proceedings therein. [C. L. § 3630.

Cal. C. Civ. P. 2 925.

3772. Deposit in lieu of undertaking. In all civil cases arising in justices' courts, wherein an undertaking is required as prescribed in this code, the plaintiff or defendant may deposit with said justice a sum of money equal to the amount of the required undertaking, which may be received and held by the justice in place of said undertaking. [C. L. § 3631.

Cal. C. Civ. P. 2 926".

TITLE 74.

PROBATE CODE.

3773. Title known as Probate Code. This title shall be known as the Probate Code.

CHAPTER 1.

JURISDICTION.

3774. Where will proved and letters granted. proved and letters testamentary or of administration granted:

Wills must be

1. If the decedent be a resident of the state, in the county in which he had his residence at the time of his death.

2. If the decedent be a non-resident of the state: first, in the county in which he may have died leaving estate therein; second, in any county in which any part of the estate may be, the decedent not having left estate in the county in which he died, or having died without the state.

3.

In all other cases, in the county where application for letters is first made. [C. L. § 3988.

Cal. C. Civ. P. ? 1294*.

Civil business arising in a county must be tried there, Con. art. 8, sec. 7.

3775. Id. Concurrent jurisdiction. When a case is originally within the jurisdiction of the courts of two or more counties, the district court of that county in which application is first made for letters testamentary or of administration has exclusive jurisdiction of the settlement of the estate. [C. L. § 3989*.

Cal. C. Civ. P. 1295*.

3776. Disqualification of judge. Procedure. Where a judge is next of kin to the decedent, or is a legatee or devisee under the will, or is a witness thereto, or is otherwise interested or disqualified in any probate matter, he shall order the same transferred to the district court of another district, or to be heard before another judge of the same district, or procure a judge of another district to hold court for the hearing of such matter. Any proceeding so removed may be returned upon petition of any person interested, upon the election or appointment of another judge not disqualified. The clerk making such transfer must transmit to the clerk of the court to which the proceeding is transferred a certified copy of the order of transfer and all the papers on file in his office relating to the matter. [C. L. §§ 4089*-4092*.

Cal. C. Civ. P. ?? 1430-1433*. See Sup. '93, p. 1007.

Disqualification of judges, Con. art. 8, sec. 13; ?? 692, 693.

3777. Orders at chambers. Hearings at any place in district, when. The judge of the district court in which any probate or guardianship matter is pending may make any order relating to such proceeding in chambers at any place in his district, and such order shall have the same force and effect as if made by the court sitting in the proper county. The hearing of any matter requiring notice shall be had at the time and place appointed or at the time to which the same may be postponed, except that where there is no contest, or where

all the parties consent, such hearing may be had at any place within the judicial district in which the matter is pending. ['96, p. 352*.

Iowa, McClain's An. C. (1888) ? 3510*.

Stipulation to try or hear matter at any place, 683. Powers at chambers, ?? 682, 712.

3778. Judges, powers of. Code of civil procedure applicable. The district and supreme courts and the judges thereof sitting in probate and guardianship matters shall exercise all such powers, consistent with the provisions of this title, as are or may be conferred upon those courts or judges, respectively, in other proceedings; and, except as otherwise provided in this title, the provisions of the code of civil procedure shall be applicable to and constitute the rules of practice in probate and guardianship proceedings. [C. L. § 4295*. Jurisdiction of district court, Con. art. 8, sec. 7;

Cal. C. Civ. P. 3 1713*.

Trials in conformity with civil procedure, ? 4041. 2670.

3779. Validity of probate and guardianship orders and decrees. No order or decree affecting the title to real property, heretofore or hereafter made in any probate or guardianship matter, shall be held to be void at the suit or instance of any person claiming adversely to the title of the decedent or ward, or under a title not derived from or through the decedent or ward, on account of any want of notice, defect, or irregularity in the proceedings or of any defect or irregularity in such order or decree, if it appears that before the order or decree was entered, the executor, administrator, or guardian, as the case may be, was appointed by a court of competent jurisdiction, upon such notice as was or may be prescribed by law; and, in an estate in which a competent court shall have appointed an executor, administrator, or guardian upon due notice, no objection to any subsequent order or decree therein can be taken by any person claiming under the deceased or under the ward, on account of any such want of notice, defect, or irregularity, in any other manner than on direct application to the same court, made at any time before distribution, or on appeal.

Validity of clerk's orders, etc., 3784. Conclusiveness of decrees, ?? 3946, 3955. Orders and decrees need not recite jurisdictional facts, 4039. Decree showing that due notice was given is conclusive evidence of that fact, 4036.

Nothing to the contrary appearing, it will be presumed that the probate court proceeded regularly in the appointment of an administrator. Uebel v. Maltese, 2 U. 430.

The appointment of an administrator cannot be collaterally attacked in an action for the wrongful death of the decedent. Chilton v. U. P. Ry. Co., 8 U. 47; 29 P. 963.

Everything consistent with the record, which would have warranted the appointment and issue of letters of administration, will be presumed to

have been found and acted upon by the probate court. Acts done by the court which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter. Harris v. Chipman, 9 U. 101; 33 P. 242.

Letters of administration cannot be collaterally attacked for want of a seal or bond given by administrator. Id.

A court of chancery has power to review a decree of the probate court where the same has been obtained by fraud or mistake, though plaintiff had notice of all of the proceedings in the probate court, and the time for appeal from the decree of distribution had expired. Benson v. Anderson, 10 U. 135; 37 P. 256.

3780. Objection to decree, when available. An objection to any paper, petition, decree, or order in any probate or guardianship matter, for an erroneous or defective statement or determination of any fact necessary to jurisdiction which actually existed, or for an omission to find or state any such fact in such paper, petition, decree, or order, is available only on direct application to the same court, or on appeal.

N. Dak. (1895) 26185.

Any interested person has right to be heard at

any hearing, 4038. Correction of mistakes in settlements, 2 3946, 4048.

3781.

CHAPTER 2.

POWERS OF CLERK.

Clerk, powers of. The clerk of the district court shall have and exercise within his county all the powers and jurisdiction of the court, and of the judge thereof, in the following matters:

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