OF THE COMMENCEMENT OF ACTIONS.

In the district courts, superior court of San Francisco, and the county courts, civil actions are commenced by filing with the clerk of the court before whom the petition is brought a document called the complaint, which should contain a description of the cause of action which the plaintiff has against the defendant.

In those cases where the plaintiff requires the answer of the defendant to be verified by oath, the complaint must be sworn to, [but in case the admission by the defendant of the truth of the fact set forth in the answer, would subject him to a prosecution for felony, the verification or not of the answer will be at the option of the defendant,] also when the action is founded on a written instrument upon which suit is brought, whether executed by the defendant or another individual. In actions prosecuted by a corporation, any of its officers can verify the complaint, and any person can verify on behalf of the state. In other actions, any person can verify for the plaintiff, in case he is absent or unacquainted with the facts, but that must be stated in the affidavit.

In actions for the recovery of real property the complaint must set forth the metes and bounds thereof; and in actions on judgments it is sufficient to state in the complaint, after describing the judgment, that it was duly rendered; and if the allegation be controverted, the plaintiff is bound on the trial to establish the facts conferring jurisdiction; and in all actions on contracts for the performance of conditions precedent, it is sufficient to allege that the plaintiff performed all the conditions of the contract on his part, and if controverted by the defendant's answer, the plaintiff shall establish on the trial the facts showing such performance; and where the plaintiff pleads a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and date of passage.

The plaintiff may include several causes of action in his complaint, and a recovery be had on one or all at one trial;

thus for example, a plaintiff having several causes of action against a defendant, growing out of contracts express or implied, such as amount due on a note, balance due on a bill of exchange, balance due on book account, amount due on contract for work and labor done: any or all of these may be included in one complaint.

Where the plaintiff seeks to recover real estate, and damage done the same, and waste committed thereon, and rents and profits for occupying it, one or all of these causes may be included in the complaint.

Where the plaintiff seeks to recover personal property, he may include in the complaint a claim for damage for withholding the same.

Where a recovery is sought by an individual having various claims against a trustee, growing out of a contract or by operation of law, one or all may be included in the complaint.

Where various injuries have been done to the plaintiff's character, one or all may be included in the complaint.

Where various injuries have been done to the person of the plaintiff, one or all may be included in the complaint.

And where various injuries have been done to the real estate of the plaintiff, these one or all may be contained in the complaint. But in drawing up the complaint, where more than one cause of action is contained in it, each cause must be as fully and fairly described as if there were but one, and it must be drawn in such a manner that the defendant will know what it is he is called upon to answer and defend.

For the purposes of the action, every material allegation contained in the complaint not expressly controverted by the answer, is to be taken as true, and judgment rendered accordingly.

After the complaint has been filed, the clerk is to issue a summons against the defendant in favor of the plaintiff.

The summons and copy of the complaint is to be served on the defendant personally, except where the action is against a corporation, then on the president thereof, or other head of the corporation, secretary, cashier, or managing

agent; if against a minor under the age of fourteen, on such minor personally, and also on his father, mother or guardian; or if there be none within the state, then on any person having the care and control of such minor, or with whom he resides, or in whose service he is employed; and if against a person who is judicially declared of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, then on such guardian.(a)

SERVICE BY PUBLICATION.

Defendants to an action may be brought into court by publication of the summons. In case where the person on whom the service is to be made resides out of the state or has departed from the state, or cannot after due diligence be found within the state, or conceals himself to avoid the service of the summons, the service of the summons is to be ordered by the court, by publishing the same in some newspaper, most likely to give the defendant notice of the pendency of the action, and for such length of time as the court shall deem reasonable, but the same must be published at least once a week; the facts of non-residence, departure from the state, or that the defendant cannot be found within it, after due search for him having been made, or that he conceals himself to avoid service of summons, and that there is a cause of action against him, must be made to appear to the satisfaction of the court by affidavit before the order of publication will be made. As against a non-resident of the state, or one who has absented himself from it, the publication must be made for not less than three months, once a week; and where the resident or non-resident defendant is known, in addition to the summons being published, the court is to order and direct a copy of the summons and complaint to be deposited in the post-office, directed to the defendant at his place of residence. In case the defendant is absent from or a non-resident of the state, personal service of copy of summons and complaint is, from the language of the law, a good

(a) 2 California Statutes, 55, 56, 57, 58, 59, 60, 61.

service; but, to prevent all cavil on the point, it is better to have an order for and publish the summons, in addition to the personal service. In all cases where the summons has been published for the time and in the paper named and directed by the court, and copy of summons and complaint deposited in the post-office as directed, the service is complete, and in forty days thereafter the answer of the defendant is due. In an action on a contract for the payment of money, instead of ordering a publication against a defendant, the court may appoint an attorney to act for him, or may order the summons published, and appoint an attorney too. In actions upon joint contracts, where one or more of the obligors have been served, but not all, the service is good against those actually served in the discretion of the court, and a judgment rendered upon such service is to operate on the separate property of him that has been served, and the joint property of all the obligors; and in an action where the defendants are severally liable on the contract sued, and service be made on part, proceedings may be had against those served as if they were the defendants only. A voluntary appearance of the defendant in court is equal to personal service of summons and complaint.(a)

WHERE THE ANSWER OF THE DEFENDANT SHOULD BE FILED.

If the defendant was served in the county where the action is brought, then his answer should be filed in ten days after the service, and if he has been served in the district where the action is brought, but out of the county, then his answer should be filed in twenty days after service, in all other cases forty days after service, made either personally or by publication. After service has been made the court has jurisdiction of the case, and if the defendant fails to make answer or appear, the court has the power to render judgment by default or take such proceedings in the matter as the justice of the case requires. But if the defendant appears within the time limited, he may answer or demur to the plaintiff's complaint.(b)

(a) 2 California Statutes, 55, 56. (b) 2 California Statutes, 57, 58, 59.

ANSWER.

The answer of the defendant must be one in good faith, and not a sham defence; all sham answers or defences made by a party, the court upon motion, will strike from the files and proceed as if they were not filed. The answer should controvert every material allegation in the complaint, by a general or specific denial thereof, or a denial according to his information and belief, or of any knowledge sufficient to form a belief. But in stating matter, it must be in counter claim of the defendant against the plaintiff arising out of or connected with the subject matter of the suit, or that which is a good cause of action, in favor of the defendant against the plaintiff, growing out of a contract and existing at the time of the commencement of the action, and the defendant may set forth in his answer as many defences and counter claims as he may have, but must do it separately. Where the complaint to which the answer is made is verified by affidavit, the answer must also be verified by the defendant, his agent, attorney, or other person; the verification is to be made by the party himself, unless he is absent or is not acquainted with the facts; in case he is not acquainted with the facts, then the verification is to be made by the person who is, and when it is made by any person other than the party himself, the reasons must be set forth in the affidavit; where a corporation is a party, an officer thereof, can verify, and where the state or an officer thereof in its behalf is a party, any person may verify who is acquainted with the facts.

Where the defence is founded upon a written instrument. and a copy thereof is given, the genuineness and due execution thereof, will be deemed admitted, unless the plaintiff file with the clerk of the court five days before the commencement of the term at which the case is to be tried, an affidavit denying the same. But the allegation of new matter is to be considered and taken by the court as controverted by the plaintiff as upon a direct denial or avoidance.(a)

(a) 2 California Statutes, 56, 57, 58, 59, 60, 61.