SECTION 1063. CHAPTER X. ACTIONS IN JUSTICES' COURTS. ARTICLE I. Summons, arrest and attachment. II. Pleadings and trial. III. Judgment and exection. ARTICLE I. SUMMONS, ARREST AND ATTACHMENT. Any person may act as attorney, except constable. 1064. Actions commenced by summons or appearance. 1065. Guardian for infant, how appointed. 1066. Contents of summons. 1067. Time when summons is returnable. 1068. Manner of serving summons. 1069. Complaint may be served with summons, in certain cases. 1070. One hour allowed to appear after the time. 1071. Order to arrest, in what cases allowed. 1072. Proof to be made, and security given before order. 1073. Defendant when arrested, to be taken before justice. 1074. Constable to give notice to plaintiff. 1075. Defendant arrested, how kept. 1076. Order to attach property when allowed. 1077. Proof and security required before order made. 1080. Disposition of property, when attached. 1081. Constable must make return. 1082. Plaintiff not a resident must give security. 1083. Security taken by constable, its avails how disposed of. It was no part of the original design of the Commissioners to review the system of procedure in justices' courts; but further reflection and observation, as their work advanced, satisfied them that it was indispensable to the proper and harmonious arrangement of the entire system. Many statutes equally applicable to proceedings in that court as to those of higher jurisdiction, are rendered useless in regard to the latter, by the new system of procedure, and must be either repealed so far as they apply to one tribunal, and left to stand in their relation to another, or justices' courts must be included in the revision. The Commissioners are of opinion, that the records in justices' courts are of a character requiring preservation. Their decisions are final, unless appealed from, in the same manner as judgments in higher courts. Their dockets have long been declared to be evidence, and ought to be secured by provisions for their preservation as public records. They therefore determined to classify these courts as courts of record, and in this view, are required by law to include them in the code. The business of this court is larger in the aggregate, and more intimately connected with the ordinary transactions of the people, than that of any other, and there is a manifest propriety in providing for it the very best system of procedure which can be devised. An uniformity through all the courts, as far as practicable, not only secures stability in the administration of justice, but it gives to inferior courts the benefit of the learning and construction which would be otherwise confined mostly to the higher tribunals. The justice's court is the school, in which many of our most eminent lawyers and judges have taken their first lessons; lessons which have often beneficially influenced the opinions and conduct of the lawyer, the judge and the statesman, in his later and more elevated sphere. § 1063. Parties in justices' courts may prosecute or defend in person or by attorney, and any person may act as attorney, except that the constable by whom the summons or jury process was served, cannot appear or act on the trial in behalf of either party. He may however act, in any other stage of the action, as agent or attorney for a party, and the authority of a person to act for another as attorney, may be oral or written, but unless admitted by the adverse party must be proved by the oath of the attorney or otherwise. § 1064. Actions in justices' courts are commenced by summons, or by the voluntary appearance and pleadings of the parties without summons. In the latter case, the action is deemed commenced, at the time of appearance. In analogy to proceedings in the supreme court and to secure uniformity in all cases as far as practicable, it is deemed best to make the summons the only process by which actions can be commenced, and when an arrest of the defendant or attachment of his property is proper, to require an order of the justice for that purpose to be endorsed. § 1065. When a guardian is necessary, he must be appointed by the justice as follows: 1. If the infant be plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years or upwards, if under age, upon the application of some relative or friend. The consent in writing of the guardian to be appointed, and to be responsible for costs, if he fail in the action, must be first filed with the justice. 2. If the infant be defendant, the guardian must be appointed at the time the summons is returned, or before the pleadings. It is the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present, and consent in writing to be appointed. Otherwise the justice may appoint any suitable person who gives such con sent. § 1066. The summons must be addressed to the defendant by name, or if his name be unknown, by a description of him, and must summon him to appear before the justice, at his office in a town or ward, and at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described in general terms, sufficient to apprise the defendant of the nature of the claim against him, and must state the amount for which the plaintiff will take judgment, if the defendant fail to appear and answer. It must be subscribed by the plaintiff, or by the justice before whom it is returnable. The principle changes in practice required in this description of the summons are: 1. Its address to the defendant instead of a constable: 2. The direction to state the amount for which judgment will be claimed if the defendant fails to appear and answer. This is analogous to the summons in the supreme court; and subsequent provision is made by which the plaintiff will be induced to state his claim no higher than he can establish it by evidence; 3. The permission to the plaintiff to issue his own summons if he chooses to do so. The summons in the supreme court is always issued by the party or his attorney. Provision is made for regular return days of process issued by the party, at which times the justice is required to be in attendance, and the system of costs is also made applicable to this mode of proceeding. § 1067. The time mentioned in the summons, for the appearance of the defendant, and the time of service must be as follows: 1. Where the summons is accompanied by an order to arrest the defendant, or to attach property under sections 1071 and 1076, it must be returnable immediately: 2. When the defendant is not a resident of the county, or where the plaintiff is not a resident, and gives the security required by section 1082, it must be returnable not more than three days from its date, and must be served at least two days before the time for appearance: 3. In all other cases it must be returnable, not more than twelve days from its date, and must be served at least six days before the time for appearance. § 1068. The summons must be served by a constable of the county, as follows: 1. If the action be against a corporation, by delivery of a copy to the president, or other head of the corporation, or to the secretary, cashier, or managing agent thereof, or when no such officer resides in the county, to a director resident therein: 2. If against a minor under the age of fourteen years, by delivery of a copy to such minor, and also to his father, mother, or guardian, or if there be none within the county, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is: 3. If against a person, judicially declared to be of unsound mind, or incapable of conducting his own. [CIVIL CODE.] 29 |