must not standing any such unknown person may be under legal dis- SEC. 3. Section seven hundred and fifty-one of the Code of Judgment 751. When the summons has been served as provided be entered in the preceding section and the time for answering has by default. expired, the court shall proceed to hear the case as in other cases and shall have jurisdiction to examine into and determine the legality of plaintiff's title and of the title and claim of all the defendants and of all unknown persons, and to that end must not enter any judgment by default, but must in all cases require evidence of plaintiff's title and possession and hear such evidence as may be offered respecting the claims and title of any of the defendants and must thereafter direct judgment to be entered in accordance with the evidence and the law. The court before proceeding to hear the case must require proof to be made that the summons has been served and posted as herein before directed and that the required notice of pendency of action has been filed. The judgment after When it has become final is conclusive against all the persons conclusive. named in the summons and complaint who have been served and against all unknown persons as stated in the complaint and summons who have been served by publication, but shall not be conclusive against the State of California or the United States. Said judgment shall have the effect of a judgment in rem except as against the State of California and the United States; and provided further, that the said judgment shall not bind or be conclusive against any person claiming any estate, title, right, possession or lien to the property under the plaintiff or his predecessors in interest, which claim, lien, estate or right of possession has arisen or been created by the plaintiff or his predecessors in interest within twenty years prior to the filing of the complaint. The remedy provided in Remedy is this and the two preceding sections shall be construed as cumulative and not exclusive of any other remedy, form or right of action or proceeding now allowed by law. entered is cumula tive. Actions SEC. 4. This act shall be in force and effect from and after now pend- its passage; provided, that this act shall not affect any action in court now pending. CHAPTER XCIV. An act to amend section 475 of an act entitled "An act to establish a Political Code," approved March 12, 1872, relating to clerks and phonographic reporter in the office of the attorneygeneral, fixing their salaries, and providing the manner of the payment of the same. [Approved March 9, 1903.] The people of the State of California, represented in senate and assembly, do enact as follows: SECTION 1. Section four hundred and seventy-five of the Political Code is hereby amended so as to read as follows: attorney 475. The attorney-general may appoint three clerks and Clerks for one phonographic reporter for his office. The annual salary general. of each of such clerks shall be sixteen hundred dollars, and the annual salary of the phonographic reporter shall be eighteen hundred dollars. Said salaries shall be paid at the same times, and in the same manner, as the salaries of other state officers are paid. Said clerks and said phonographic reporter shall be civil executive officers. SEC. 2. This act shall take effect immediately. CHAPTER XCV. An act to amend section six hundred and sixty-six of the Penal Code of the State of California, relating to punishment for second offenses. [Approved March 9, 1903.] The people of the State of California, represented in senate and assembly, do enact as follows: SECTION 1. Section six hundred and sixty-six of the Penal Code of the State of California, is hereby amended so as to read as follows: offense, 666. Every person who, having been convicted of petit second larceny, or of any offense punishable by imprisonment in the after constate prison, commits any crime after such conviction, is pun- prior ishable therefor as follows: 1. If the offense of which such person is subsequently convicted is such that, upon a first conviction, an offender would be punishable by imprisonment in the state prison for any term exceeding ten years, such person is punishable by imprisonment in the state prison not less than ten years. 2. If the subsequent offense is such that upon a first conviction, the offender would be punishable by imprisonment in the state prison for five years, or any less term, then the person viction of offense. convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years. 3. If the subsequent conviction is for petit larceny, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years. Repeal of CHAPTER XCVI. An act to repeal section six hundred and sixty-seven of the Penal Code of the State of California, in reference to punishment for second offenses. [Approved March 9, 1903.] The people of the State of California, represented in senate and assembly, do enact as follows: SECTION 1. Section six hundred and sixty-seven of the Penal Code of the State of California is hereby repealed. Record imparts notice. Certified copies as evidence. CHAPTER XCVII. An act to amend section 1207 of the Civil Code of the State of California, relating to the recordation of certain instruments and certificates of acknowledgment, the notice such recordation shall impart, and to the effect as evidence of certified copies of the records of same. [Approved March 9, 1903.] The people of the State of California, represented in senate and assembly, do enact as follows: SECTION 1. Section twelve hundred and seven of the Civil Code of the State of California is hereby amended to read as follows: 1207. Any instrument affecting real property, which was, previous to the first day of January, one thousand nine hundred and three, copied into the proper book of record, kept in the office of any county recorder, imparts, after that date, notice of its contents to subsequent purchasers and incumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the absence of any such certificate; but nothing herein affects the rights of purchasers or incumbrancers previous to that date. Duly certified copies of the record of any such instrument may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within fifteen years prior to the trial of the action, it is first shown that the original instrument was genuine. SEC. 2. This act shall take effect on and be in force from and after July first, nineteen hundred and three. CHAPTER XCVIII. An act to amend sections 1254 and 1257 of the Code of Civil Procedure, relating to the right of eminent domain and staying proceedings on judgment therein. [Approved March 9, 1903.] The people of the State of California, represented in senate and assembly, do enact as follows: SECTION 1. Section 1254 of the Code of Civil Procedure of the State of California, is amended to read as follows: ing conclu litigation. 1254. At any time after trial and judgment entered or Putting pending an appeal from the judgment to the supreme court, in possesplaintiff whenever the plaintiff shall have paid into court, for the sion, penddefendant, the full amount of the judgment, and such further sion of sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceeding, as well as all damages that may be sustained by the defendant, if, for any cause, the property shall not be finally taken for public use, the superior court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof. The defendant, who is entitled to the money paid into court for him upon any judgment, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court. It shall be the duty of the court, or a judge thereof, upon application being made by such defendant, to order and direct that the money so paid into court for him be delivered to him upon his filing a satisfaction of the judgment, or upon his filing a receipt therefor, and an abandonment of all defenses to the action or proceeding, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment by such defendant of all defenses interposed by him, excepting his claim for greater compensation. In ascertaining the amount to be paid into court, the court shall take care that the same be sufficient and adequate. The payment of the money into court, as herein before provided for, shall not discharge the plaintiff from liability to keep the said fund full and County clerk liable for money money without diminution; but such money shall be and remain, as to all accidents, defalcations, or other contingencies (as between the parties to the proceedings), at the risk of the plaintiff, and shall so remain until the amount of the compensation or damages is finally settled by judicial determination, and until the court awards the money, or such part thereof as shall be determined upon, to the defendant, and until he is authorized or required by rule of court to take it. If, for any reason, the shall at any time be lost, or otherwise abstracted or withdrawn, through no fault of the defendant, the court shall require deposited. the plaintiff to make and keep the sum good at all times until the litigation is finally brought to an end, and until paid over or made payable to the defendant by order of court, as above provided, and until such time or times the county clerk shall be deemed to be the custodian of the money, and shall be liable to the plaintiff upon his official bond for the same, or any part thereof, in case it be for any reason lost or otherwise abstracted or withdrawn. The court may order the money to be deposited in the state treasury, and in such case it shall be the duty of the state treasurer to receive all such moneys, duly receipt for, and to safely keep the same in a special fund, to be entered on his books as a condemnation fund for such purpose, and for such duty he shall be liable to the plaintiff upon his official bond. The state treasurer shall pay out such money so deposited in such manner and at such times as the court or a judge thereof may, by order or decree, direct. In all cases where a new trial has been granted upon the application of the defendant, and he has failed upon such trial to obtain greater compensation than was allowed him upon the first trial, the costs of such new trial shall be taxed against him. New trials and appeals. Improve continue. SEC. 2. Section 1257 of the Code of Civil Procedure is amended to read as follows: 1257. The provisions of Part II of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title; provided, that upon the payment of the sum of money assessed, and upon the execution of the bond to build ments the fences and cattle-guards, as provided in section twelve hundred and fifty-one, the plaintiff shall be entitled to enter into, improve, and hold possession of the property sought to be condemned (if not already in possession) as provided in section twelve hundred and fifty-four, and devote the same to the public use in question; and no motion for new trial or appeal shall, after such payment and filing of such bond as aforesaid, in any manner retard the contemplated improvement. Any money which shall have been deposited, as provided in section twelve hundred and fifty-four, may be applied to the payment of the money assessed, and the remainder, if any there be, shall be returned to the plaintiff. |