§ 752a. Action for partition of personal property. When several persons are co-owners of any personal property, an action may be brought by any one or more such co-owners for a partition thereof; or in case partition cannot be had without great prejudice to the owners, for the sale thereof, and partition of the proceeds according to the respective interests of the parties. In all such actions the provisions of this chapter shall govern wherever applicable. Real and personal property may be partitioned in the same action. [New section added April 15, 1919; Stats. 1919, p. 73.]

§ 850. Notice of hearing in justices' courts. Docket entries. When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix the day for the trial of said cause, whether the issue is one of law or fact, and give notice thereof to the parties to the action who have appeared, but in case any of the parties are represented by an attorney, then to such attorney; provided, however, that where a party has appeared in person, such party shall leave with the justice or justice's clerk, and the same shall be entered upon the register in the action, an address where service of the notice of hearing of such matter may be made; provided, further, that such notice shall be personally served on said person if he can be found at said address, but in case said person cannot, after due diligence, be found at said address and such fact appears by affidavit to the satisfaction of the court or a judge thereof, then the service of such notice may be by registered mail and in the manner hereinafter provided for service of notice by mail. Such notice shall be in writing, signed by the justice, and substantially in the following form, filling blanks according to the facts:

In the justice court, - township (or city, or city and county), county, or city and county of State of California.

plaintiff, vs.

defendant.

To - plaintiff, or attorney for plaintiff, and to defendattorney for defendant.

ant, or

You and each of you will please take notice that the undersigned justice of the peace before whom the above-entitled cause is pending, has set for hearing the demurrer of filed in said cause (or has set the said cause for trial, as the case may be), before me at my office in said township (or city, or city and county), at o'clock - - M., on the

day

Said notice shall be served by mail or personally. When served by mail the justice of the peace shall deposit copies thereof in a sealed envelope in the postoffice at least ten days before the trial or hearing addressed to each of the persons on whom it is to be served at their place of residence and the postage prepaid thereon; provided, that such notice shall be served by mail only when the person on whom service is to be made resides out of the county in which said justice's court is situated, or is absent therefrom or has appeared in person. When personally served said notice shall be served at least five days before the trial or hearing on the persons on whom it is to be served by any person competent and qualified to serve a summons in a justice's court, and when personally served it shall be served, returned and filed in like manner as a summons. When a party has appeared by attorney the notice may be served in the manner prescribed by subdivision one of section one thousand eleven of this code. The justice shall enter on his docket the date of trial or hearing; and when such notice shall have been served by mail the justice shall enter on his docket the date of mailing such notice of trial or hearing and such entry shall be prima facie evidence of the fact of such service. The parties are entitled to one hour in which to appear after the time fixed in said notice, but are not bound to remain longer than that time unless both parties have appeared and the justice being present is engaged in the trial. of another cause. [Amendment approved April 24, 1917; Stats. 1917, p. 190.]

§ 857a. When affirmative judgment may be rendered to defendant. Affirmative judgment may be rendered for the defendant on his cross-complaint whenever the defendant proves that he is entitled to more than the plaintiff has proven or whenever the plaintiff fails to prove that he is entitled to any judgment. [New section added May 18, 1919; Stats. 1919, p. 727.]

Keeper. If

§ 868. Attachment by sheriff or constable. more than one defendant. Service out of county. The writ may be directed to the sheriff or any constable of the county in which such justice court is situate and must require him to attach and safely keep all of the property of the defendant within his county not exempt from execution, or so much. thereof as may be sufficient to satisfy the plaintiff's demand against the defendant, the amount of which must be stated in conformity with the complaint, unless the defendant, whose property has been or is about to be attached, give him security Supp.-3

by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand against such defendant besides costs; in which case to take such undertaking; provided, however, that whenever a levy shall be made upon personal property, other than money, belonging to a going concern, then the sheriff must, if the defendant consents, place a keeper in charge of said attached property at plaintiff's expense for at least two days or more, and said keeper's fees must be prepaid by the attaching creditor. After the expiration of said two days, the sheriff shall take said property into his immediate custody, unless other disposition is made by the court or parties.

In the event that the action is against more than one defendant, any defendant whose property has been or is about to be attached in such action may give the sheriff such undertaking, and the sheriff shall take the same, and such undertaking shall not subject such defendant to or be answerable for any demand against any other defendant, nor shall the sheriff thereby be prevented from attaching or be obliged to release from attachment, any property of any other defendant; provided, however, that such defendant, at the time of giving such undertaking to the sheriff, shall file with the sheriff a statement duly verified under oath, wherein such defendant shall aver and declare that the other defendant or defendants in the action in which said undertaking was given has or have not any interest or claim of any nature whatsoever in or to said property. Such statement must further contain the character of such defendant's title and the manner in which he acquired title to such attached property.

Several writs may be issued at the same time to the sheriffs or constables of different counties; provided, that where a writ of attachment issued by a justice of the peace is to be served out of the county in which it was issued, the writ of attachment shall have attached to it a certificate under seal by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace of said county at the date of the writ. [Amendment approved May 26, 1917; .

Stats. 1917, p. 939.]

§ 883. Waiving jury trial. A jury may be waived

1. By consent of parties, entered in the docket;

2. By a failure of either party to demand a jury within two days after service upon him of notice of trial of an issue of fact, as provided in section eight hundred fifty;

3. By the failure of either party to appear at the time fixed for the trial of an issue of fact. [Amendment approved May 25, 1919; Stats. 1919, p. 1013.]

§ 890a. Entry of judgment of dismissal. Judgment of dismissal must be entered whenever the plaintiff fails to bring the action to trial within two years after the case is brought to an issue of law or fact, except where the parties have stipulated in writing that the time may be extended; provided, however, that in any action pending when this act takes effect, a judgment of dismissal shall not be entered under the direction hereof sooner than January 22, 1920. [New section added May 3, 1919; Stats. 1919, p. 137.]

§ 899. Docketing of judgments. From the time of docketing in the county clerk's office execution may be issued thereon by the county clerk to the sheriff of any county of the state, other than the county in which the judgment was rendered in the same manner and with like effect as if issued upon a judgment of the superior court. Upon the return of the exeeution, the county clerk shall cause the same to be filed with the justice of the peace who issued the abstract of judgment. [Amendment approved May 3, 1919; Stats. 1919, p. 239.]

§ 900a. Correction of clerical mistakes in judgment. The justice shall have power upon motion of the injured party and notice to the adverse party to correct any clerical mistakes in his judgment as entered, so as to conform to the judgment ordered. Said justice shall have power to set aside any void judgment upon motion of either party to the action after. notice to the adverse party, and thereupon said action shall be treated as if no judgment had been entered. [New section added May 18, 1919; Stats. 1919, p. 730.]

§ 953. Certification of copies and undertakings. The copies provided for in the last three sections must be certified to be correct by the clerk or the attorneys, and must be accompanied with a certificate of the clerk or attorneys that an undertaking on appeal, in due form, has been properly filed, or a stipulation of the parties waiving an undertaking. If it appear that there is any paper or record in the custody of the clerk of the trial court which was before the trial court but which is not included in the record on appeal, and an examination of such paper or record will assist in a determination of the appeal on its merits, the court in which the appeal is pending may, on motion of either party, or on its own motion, require the production of a certified copy of such paper or record, and the same shall thereupon be deemed a part of the record on appeal. [Amendment approved May 6, 1919; Stats. 1919, p. 290.]

§ 953c. Clerk to transmit prepared record on appeal. Omissions from record may be filed as supplement. Where, on appeals taken from judgments, orders or decrees of the superior court to the supreme court or district courts of appeal the appellant elects to avail himself of the provisions of the three preceding sections, it shall be the duty of the clerk of the court from which the appeal is taken, within ten days after the preparation of the record, to transmit to the clerk of the court to which the appeal is taken, the record prepared in accordance with the provisions of the two preceding sections. Said records shall be filed with the clerk of the court to which the appeal is taken and no transcript thereof need be printed. In filing briefs on said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court.

No appeal shall be dismissed nor shall any appeal be decided adversely to any party for failure to print in his brief the portion of the record or any part thereof in support of his points, but in such case the court hearing the appeal shall direct such party to print and serve on the adverse party and file with it a supplement to his brief in which shall be set forth in full that portion of the record relied on by such party and not printed in any former brief. The court shall fix the time within which such supplement shall be served and filed and shall permit or require such additional portions of the record to be printed, served and filed as may be desirable for the full presentation of the points at issue. [Amendment approved May 3, 1919; Stats. 1919, p. 261.]

§ 958. Certification of judgments on appeal. When judgment is rendered upon the appeal, it must be certified by the clerk of the appellate court to the clerk with whom the judg ment-roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the clerk with whom the roll is filed must attach the certificate to the judgment-roll, and enter a minute of the judgment of the appellate court on the docket, against the original entry. In cases of appeal from an order, the clerk must enter at length in the records of the court the certificate received, and minute against the entry of the order appealed from, a reference to the certifi cate, with a brief statement that such order has been affirmed, reversed, or modified, by the appellate court on appeal. [Amendment approved May 6, 1919; Stats. 1919, p. 290.]

§ 963. Cases in which an appeal may be taken. An appeal may be taken from a superior court in the following cases: