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§ 1262. Until the first day of January, one thousand eight hundred and seventy-three, at twelve o'clock noon, the provisions of sections 1256 and 1257 of this title are suspended, and until then, except as otherwise provided in this title, the rules of pleading and practice in civil actions now in force in this state are applicable to the proceedings mentioned in this title, and constitute the rules of pleading and practice therein.
§ 1263. Nothing in this code must be construed to abrogate or repeal any statute providing for the taking of property in any city or town for street purposes.
C. C. P.-35
OF ESCHEATED ESTATES.
SECTION 1269. Manner of commencing proceedings-relative to escheated estates.
1270. Receiver of rents and profits may be appointed.
1272. Proceedings by persons claiming escheated estates.
§ 1269. When the attorney-general is informed that any real estate has escheated to this state, he must file an information in behalf of the state, in the district court of the judicial district in which such estate, or any part thereof, is situated, setting forth a description of the estate, the name of the person last seized, the name of the occupant and person claiming such estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have escheated, with an allegation that, by reason thereof, the state of California has right by law to such estate. Upon such information, a summons must issue to such person, requiring him to appear and answer the information within the time allowed by law in civil actions; and the court must make an order, setting forth briefly the contents of the information, and requiring all persons interested in the estate to appear and show cause, if any they have, within forty days from the date of the order, why the same should not vest in this state; which order must be published at least one month from the date thereof, in a newspaper published in the district, if one be published therein, and in case no newspaper is published in the district, in some other newspaper in this state.
Stat. 1853, 221-2, 82, inserted the words "or have reason to believe" between "informed" and "that any real estate;" also between "state" and "he must file," the words "by reason that any person hath died seized thereof, and hath left no heirs capable of inherting the same, or by reason of the incapacity of the devisees to hold the same, or when he shall be informed or have reason to believe that any such estate hath otherwise escheated to the state;" also "terre-tenant instead of "occupant;" also the words "or persons, bodies politic or corporate alleged in
such information to hold, possess, or claim such estate" between "person and "requiring:" also the words "and show cause why such estate should not be vested in the state," instead of "and answer the infofmation:" also "thirty" instead of "forty;" also "by direction of the judge" between "district" and "in some other newspaper.'
Stat. 1852, 103, § 2, was same as stat. 1855, inserting therein the words "or district attorney after "attorney-general:" also the words "in his district" between "real estate" "and hath escheated:" also "without devising the same" between "thereof" and "and hath left;" also between "hold the same" and "or when he," the words "and such estate shall not have been sold, according to law, within two years after the death of the person last seized:" also "within his district" between "estate" and hath otherwise:" also "or of any adjoining judicial district" after "judicial district:" also omitting the words "or any part thereof;" also inserting the words "on the first day of the next regular term of said court; which summons shall be served at least fifteen days before the return day thereof" instead of "within the time allowed by law in other civil cases."
2 Cal. 558; 5 Cal. 573; 18 Cal. 217.
1270. The court, upon the information being filed and upon the application of the attorney-general, either before or after answer, upon notice to the party claiming such estate, if known, may, upon sufficient cause therefor being shown, appoint a receiver to take charge and receive the rents and profits of the same until the title to such real estate is finally settled. Stat. 1855, 222, § 4.
§ 1271. All persons named in the information may appear and answer, and may traverse or deny the facts stated in the information, the title of the state to lands and tenements therein mentioned, at any time before the time for answering expires; and any other person claiming an interest in such estate may appear and be made a defendant, and by motion for that purpose, in open court, within the time allowed for answering; and if no person appears and answers within the time then judgment must be rendered that the state be seized of the lands and tenements in such information claimed. But if any person appear and deny the title set up by the state, or traverse any material fact set forth in the information, the issue of fact must be tried as issues of fact are tried in civil actions. If, after the issues are tried, it appears from the facts found or admitted, that the state has good title to the land and tenements in the information mentioned, or any part thereof, judgment must be rendered that the state be seized thereof, and recover costs of suit against the defendants.
Stat. 1852, 103, 83, inserted the words "bodies politic and corporate between "All persons" and "named:" also the words" as terre-tenant or claimant to the estate" between "information" and "may appear;' also "plead to such proceedings instead of the word "answer:" also on or before the third day of the return day of the summous" instead of "before the time for answering expires; also "and plead as aforesaid" between "defendant" and "and by motion;" also "pleading as aforesaid" instead of "answering:" also "and if any person shall appear and plead as aforesaid or shall refuse to plead within the time" instead of "and if no person appears and answers within the time;" also ad a survey may be ordered and entered as in other actions when the title or boundary is drawn in question" between "civil actions" and "If, after."
Ø 1272. Within twenty years after judgment in any proceeding had under this title, a person not a party or privy to such proceeding may file a petition in the district court of the county of Sacramento, showing his claim or right to the property or the proceeds thereof. A copy of such petition must be served on the attorney-general at least twenty days before the hearing of the petition, who must answer the same; and the court thereupon must try the issue as issues are tried in civil actions, and if it be determined that such person is entitled to the property or the proceeds thereof, it must order the property, if it has not been sold, to be delivered to him, or if it has been sold and the proceeds paid into the state treasury, then it must order the controller to draw his warrant on the treasury for the payment of the same, bat without interest or cost to the state, a copy of which order, under the seal of the court, shall be a sufficient voucher for drawing such warrant. All persons who fail to appear and file their petitions within the time limited, are forever barred, saving, however, to infants, married women and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petitions at any time within five years after their respective disabilities cease.
Stat. 1869-70, 72, § 1, amending stat. 1852, read: "The controller of the state shall keep just and true accounts of all moneys paid into the treasury, all land vested in the state, as aforesaid; and if any person shall appear within twenty years after the death of the intestate, and claim any moneys paid into the treasury, as aforesaid, as heir or legal representative, such person may file a petition to the district court, in which the seat of government may be staying, stating the nature of his claim, and praying such money may be paid him; a copy of such petition shall be served on the attorney-general at least twenty days before the hearing of said petition, who shall put in answer to the same, and the court thereupon shall examine said claim, and the allegations and proofs; and if the court shall find that such person is entitled to any money paid into the state treasury, he shall by an order direct the controller to issue his warrant on the treasury for the payment of the same, but without in
terest or cost to the state; a copy of which order, under seal of the court, shall be a sufficient voucher for issuing such warrant; and if any person shall appear and claim land vested in the state, as aforesaid, within five years after the judgment was rendered, it shall be lawful for such person (other than such as was served with a summons or appeared to the proceedings, their heirs or assigns) to file in the said district court, in which the lands claimed lie, a petition setting forth the nature of his claim, and praying that the said lands may be relinquished to him; a copy of which petition shall be served on the attorney-general, who shall put in an answer, and the court thereupon shall examine said claim, allegations and proofs; and if it shall appear that such person is entitled to such land claimed, the court shall decree accordingly, which shall be effectual for divesting the interest of the state in or to the lands: but no costs shall be charged to the state; and all persons who shall fail to appear and file their petitions within the time limited as aforesaid, shall be forever barred,saving, however, infants, married women, and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petitions as aforesaid, at any time within five years after their respective disabilities are removed: provided, however, that the legislature may cause such lands to be sold at any time atter seizure, in such manner as may be provided by law-in which case the claimant shall be entitled to the proceeds, in lieu of such lands, upon obtaining a decree or order as aforesaid.