THE

CODE OF CIVIL PROCEDURE

OF CALIFORNIA.

PRELIMINARY PROVISIONS.

2. When this Code takes effect.

3. Not retroactive.

4. Rule of construction of this Code.

5. Provisions similar to existing laws, how construed.

6. Tenure of office preserved.

§ 7. Construction of repeal as to certain officers.

8. Actions, etc., not affected by this Code.

$ 9. Limitations shall continue to run.

$10. Holidays.

11. Same.

12. Computation of time.

§ 13. Certain acts not to be done on holidays.

§ 14. "Seal" defined.

15. Joint authority.

§ 16. Words and phrases.

§ 17. Certain terms used in this Code defined.

§ 18. Statutes, etc., inconsistent with Code repealed.

25. Civil actions arise out of obligations or injuries.

26. Obligation defined.

27. Division of injuries.

$28. Injuries to property.

$29. Injuries to the person.

30. Civil action, by whom prosecuted.

31. Criminal actions.

32. Civil and criminal remedies not merged.

§ 2. This Code takes effect at twelve o'clock noon, on the first day of January, eighteen hundred and seventythree.

See secs. 8, 18.

§ 3. No part of it is retroactive, unless expressly so declared.

See sec. 18.

[ 28 ]

Retroactive-1 Cal. 65; 4 Cal. 127; 5 Cal. 402; 6 Cal. 430; 28 Cal. 320; 30 Cal. 143; 39 Cal. 309; 52 Cal. 293.

§ 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this State respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.

Construction of statutes-See secs. 1858, 1859; 6 Cal. 359; 11 Cal. 215; 13 Cal. 88; 17 Cal. 487; 31 Cal. 359; 45 Cal. 429; 49 Cal. 68.

Title of act-5 Cal. 195; 10 Cal. 315; 16 Cal. 359; 19 Cal. 512; 36 Cal. 595; 47 Cal. 222; 51 Cal. 304, 624; 52 Cal. 459, 553.

Conflict of codes-51 Cal. 295.

State practice and Federal courts-51 Cal. 479.

Liberal interpretation of Code-See secs. 452, 475.

§ 5. The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof and not as new enactments.

Remedy, when cumulative-2 Cal. 243.

§ 6. All persons who at the time this Code takes effect hold office under any of the acts repealed continue to hold the same according to the tenure thereof, except those offices which are not continued by one of the codes adopted at this session of the Legislature.

§ 7. When any office is abolished by the repeal of any act, and such act is not in substance re-enacted or continued in either of the codes, such office ceases at the time the codes take effect.

Repeal-19 Cal. 512; 49 Cal. 273.

§ 8. No action or proceeding commenced before this Code takes effect, and no right accrued, is affected by its provisions, but the proceedings therein must conform to the requirements of this Code as far as applicable.

See Civil Code, secs. 6, 20; also repealing clause at the end of this Code.

Pending actions-23 Cal. 47; 31 Cal. 122; 45 Cal. 221; 46 Cal. 643; 47 Cal. 59, 645; 48 Cal. 29, 646; 49 Cal. 269, 340, 446, 454.

Right accrued-48 Cal. 643.

§ 9. When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this Code goes into effect, and the same or any limitation is prescribed in this Code, the time which has already

run shall be deemed part of the time prescribed as such limitation by this Code. [In effect July 1st, 1874.]

See secs. 361, 362; also 6 Cal. 430; 50 Cal. 612.

§ 10. Holidays within the meaning of this Code are: every Sunday, the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the twenty-fifth day of December, every day on which an election is held throughout the State, and every day appointed by the President of the United States, or by the Governor of this State, for a public fast, thanksgiving, or holiday. If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, or the twentyfifth day of December, fall upon a Sunday, the Monday following is a holiday. [In effect April 9th, 1880.]

See sec. 134.

§ 11. If the first day of January, the twenty-second day of February, the fourth day of July, or the twentyfifth day of December, falls upon a Sunday, the Monday following is a holiday. [In effect July 1st, 1874.]

§ 12. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.

See sec. 476.

Fraction of day-1 Cal. 415; 14 Cal. 567; 49 Cal. 285, 289.
Operation of statute-1 Cal. 407.

Computation of time-8 Cal. 412; 15 Cal. 384; 30 Cal. 525; 33 Cal. 487; 51 Cal. 514.

Sunday-6 Cal. 660; 31 Cal. 241, 272; 47 Cal. 579; 50 Cal. 210.

§ 13. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.

§ 14. When the seal of a court, public officer, or person, is required by law to be affixed to any paper, the word "seal" includes an impression of such seal upon the paper alone, as well as upon wax or a wafer affixed thereto.

See secs. 147 to 153, and 1929 to 1934.

Seal, sufficiency of-5 Cal. 220, 315; 13 Cal. 221, 510; 15 Cal. 363; 20 Cal. 150.

Imports consideration-10 Cal. 462.

Distinction abolished-12 Cal. 286; 13 Cal. 34.

Under Mexican system-5 Cal. 467; 7 Cal. 154; 12 Cal. 149. Generally-6 Cal. 664; 12 Cal. 564; 13 Cal. 45, 221, 502; 14 Cal. 20; 16 Cal. 166, 201; 22 Cal. 151; 25 Cal. 539; 31 Cal. 67; 32 Cal. 450; 33 Cal. 11.

§ 15. Words giving a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority.

Talcott v. Blanding, March 10th, 1880.

§ 16. Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition.

§ 17. Words used in this Code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as a natural person; writing includes printing; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is embraced by the term testify," .and every written one in the term depose;" signature or subscription includes mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness.

The following words also have in this Code the signification attached to them in this section, unless otherwise apparent from the context:

1. The word "property" includes both real and personal property.

2. The words "real property" are coextensive with lands, tenements, and hereditaments.

3. The words " personal property" include money, goods, chattels, things in action, and evidences of debt. 4. The word "month" means a calendar month, unless otherwise expressed.

5. The word "will" includes codicils.

6. The word "writ" signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer, and the word "process" a writ or summons issued in the course of judicial proceedings.

7. The word "State," when applied to the different

parts of the United States, includes the District of Columbia and the Territories; and the words "United States" may include the District and Territories. [In effect July 1st, 1874.]

"Person"-4 Cal. 304.

"Signature"-48 Cal. 565; 49 Cal. 413, 563. "Property"-43 Cal. 331.

"Month"-21 Cal. 393; 31 Cal. 174; 32 Cal. 347. "Will"-43 Cal. 331.

§ 18. No statute, law, or rule is continued in force, because it is consistent with the provisions of this Code on the same subject; but in all cases provided for by this Code, all statutes, laws, and rules heretofore in force in this State, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are repealed and abrogated.

This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any action or proceeding already taken, except as in this Code provided; nor does it affect any private statute not expressly repealed.

See secs. 3, 8; also repealing clause at the end of this Code. Repeals generally-6 Cal. 381; 8 Cal. 377; 19 Cal. 501; 20 Cal. 95; 39 Cal. 3; 40 Cal. 419; 41 Cal. 435; 46 Cal. 97; 49 Cal. 273.

Repeals by implication-7 Cal. 401; 10 Cal. 315; 18 Cal. 439; 28 Cal. 254; 48 Cal. 85; 53 Cal. 412, 571.

Amendments and conflicting statutes-5 Cal. 414; 6 Cal. 92; 20 Cal. 677; 35 Cal. 320; 36 Cal. 522; 38 Cal. 572; 43 Cal. 560; 44 Cal. 430; 46 Cal. 19; 49 Cal. 353.

Correlative statutes-6 Cal. 41; 31 Cal. 34, 122; 35 Cal. 708.

Statutes continued in force-49 Cal. 392, 596; 50 Cal. 117; 53 Cal. 351, 571.

Limitations-See sec. 9.

Retroactive effect-See sec. 3.

§ 19. This act, whenever cited, enumerated, referred to, or amended, may be designated simply as the "Code of Civil Procedure," adding, when necessary, the number of the section.

§ 20. Judicial remedies are such as are administered by the courts of justice, or by judicial officers empowered for that purpose by the constitution and statutes of this State.

§ 21. These remedies are divided into two classes: 1. Actions; and,

2. Special proceedings.

§ 22. An action is an ordinary proceeding in a court of justice, by which one party prosecutes another, for the en