versy, how

without

1138. (§ 377.) Parties to a question in difference, Controwhich might be the subject of a civil action, may, submitted without action, agree upon a case containing the facts action. upon which the controversy depends, and present a submission of the same to any Court which would have jurisdiction if an action had been brought; but it must appear, by affidavit, that the controversy is real and the proceedings in good faith, to determine the rights of the parties. The Court must thereupon hear and determine the case, and render judgment thereon, as if an action were depending.

NOTE. Where an appeal is taken to the Supreme
Court from a decision of a lower Court, upon a case
submitted on an agreed statement, without action, the
transcript on appeal must contain a copy of the affida-
vit required by the same section, showing the reality
of the controversy and good faith of the proceeding.
Where, instead of this affidavit, the record only showed
an allegation in the agreed statement on appeal that the
cause was heard in the Court below on an agreed state-
ment of facts, and the affidavit of the defendant that
the controversy was real, the appeal was dismissed.-
Melloise vs. Chaine, 20 Cal., p. 679. Where the par-
ties to a controversy make an agreed case, which is
submitted for decision to a District Court, the consid-
eration of the Court is restricted to the facts submitted

in the case. Where the plaintiff claimed that defend-
ant was indebted to him, a case was made and submit-
ted stating the facts agreed upon between the parties,
upon which the District Court must not decide that
plaintiff's demand was not established without proof
of other additional facts, but must render judgment
for defendant.-Crandall vs. Amador Co., 20 Cal., p.
72.

1139. ($ 378.) Judgment must be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment constitute the judgment roll.

1140. ($379.) The judgment may be enforced in the same manner as if it had been rendered in an action, and is in the same manner subject to appeal.

on, as in

Judgment other cases, costs prior of trial.

but without

to notice

Judgment enforced or appealed from as in an action,

may be

Persons contined may be discharged.

Notice of applica tion.

Service of notice.

Examination before Judge.

CHAPTER III.

DISCHARGE OF PERSONS IMPRISONED ON CIVIL PROCESS.

SECTION 1143. Persons confined may be discharged.

1144. Notice of application.

1145. Service of notice.

1146. Examination before Judge.

1147. Interrogatories may be in writing.

1148. Oath to be administered.

1149. Order of discharge.

1150. If not discharged, prisoner may again apply, when. 1151. Discharge final.

1152. Judgment remains in force.

1153. Plaintiff may order discharge of prisoner, who shall not thereafter be liable to imprisonment for the same cause of action.

1154. Plaintiff to advance funds for support of prisoner.

1143. Any person confined in jail, on an execution issued on a judgment rendered in a civil action, must be discharged therefrom upon the conditions in this Chapter specified.

1144. Such person must cause a notice, in writing, to be given to the plaintiff, his agent, or attorney, that at a certain time and place he will apply to the Judge of the District Court of the county in which such person may be confined; or, in case of his absence or inability to act, to the Judge of the County Court of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his impris

onment.

1145. Such notice must be served upon the plaintiff, his agent, or attorney, one day at least before the hearing of the application.

1146. At the time and place specified in the notice, such person must be taken before such Judge, who must examine him under oath concerning his estate and property and effects, and the disposal thereof, and his ability to pay the judgment for which he is

committed; and such Judge may also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor.

tories may

be in

writing.

1147. The plaintiff in the action may, upon such Interrogaexamination, propose to the prisoner any interrogatories pertinent to the inquiry, and they must, if required by him, be proposed and answered in writing, and the answer must be signed and sworn to by the prisoner.

1148. If, upon the examination, the Judge is satisfied that the prisoner is entitled to his discharge, he must administer to him the following oath, to wit: “I, do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to hinder, delay, or defraud my creditors, so help me God."

Oath to be tered.

adminis

discharge.

1149. After administering the oath, the Judge Order of must issue an order that the prisoner be discharged from custody, and the officer, upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause.

discharged,

may again

1150. If such Judge does not discharge the pris- If not oner, he may apply for his discharge at the end of prisoner every succeeding ten days, in the same manner as apply, above provided, and the same proceedings must thereupon be had.

when.

final.

1151. The prisoner, after being so discharged, is Discharge forever exempted from arrest or imprisonment for the same debt, unless he be convicted of having willfully sworn falsely upon his examination before the Judge, or in taking the oath before prescribed.

Judgment remains in force.

Plaintiff may order discharge

of prisoner, who shall not thereafter be

liable, etc.

Plaintiff to advance funds for support of prisoner.

1152. The judgment against any prisoner who is discharged remains in full force against any estate which may then or at any time afterward belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner, in like manner as if he had never been committed.

1153. The plaintiff in the action may at any time. order the prisoner to be discharged, and he is not thereafter liable to imprisonment for the same cause of action.

1154. Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil action, the creditor, his agent, or attorney must advance to the jailer, on such commitment, sufficient money for the support of the prisoner for one week, and must make the like advance for every successive week of his imprisonment; and in case of failure to do so, the jailer must forthwith discharge such prisoner from custody, and such discharge has the same effect as if made by order of the creditor.

CHAPTER IV.

SUMMARY PROCEEDINGS FOR OBTAINING POSSESSION OF
REAL PROPERTY IN CERTAIN CASES.

SECTION 1159. Forcible entry defined.

1160. Forcible detainer defined.

1161. Unlawful detainer defined.

1162. Service of notice.

1163. County Courts have jurisdiction.

1164. Parties defendant.

1165. Parties generally.

1166. Complaint. Judge to fix day for appearance of

defendant and summons.

1167. Summons, form and service of.

1168. Arrest.

1169. Judgment by default.

1170. Defendant may appear, etc.

SECTION 1171. Trial by jury.

1172. Showing required of plaintiff in forcible entry or

detainer. Of defendant.

1173. Complaint must be amended in certain cases.

1174. Verdict and judgment.

1175. Verification of complaint and answer.

1176. Effect of an appeal upon the judgment.

1177. Rules of practice.

1178. Appeals, how taken, etc.

1159. Every person is guilty of a forcible entry Forcible who either:

1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property;

or,

2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.

NOTE.-1. GENERALLY-CONSTRUCTION.-See Stats. 1866, p. 768, Sec. 1. This Chapter, relating to forcible entries, forcible detainers, and unlawful detainers, is drawn partly from the Stats. 1865-6, p. 768, and also Stats. 1863, p. 652. An Act concerning forcible entries and unlawful detainers was passed Stats. 1850, p. 425, amended by Stats. 1852, p. 158, also by Stats. 1858, p. 90, also by Stats. 1861, p. 582, and again by Stats. 1862, p. 420; but these Acts were repealed by the Stats. of 1863, p. 652. The decisions cited in this Chapter, which were rendered prior to the thirty-second volume of reports, were rendered under the statutes of 1850, p. 425, and Acts amendatory thereof. Those rendered since that volume, were given under the Acts of 1863, p. 652, and 1866, p. 768. All these decisions bear more or less upon the provisions of this Chapter, which, in most respects, is very similar to the previous statutes. As will be seen, many statutes concerning forcible entries and detainers have been passed, and their policy has ever been to provide a remedy for an unlawful entry, as well as a forcible entry, in order, doubtless, to avoid nice distinctions as to what constitutes force in an entry upon lands.-Moore et al. vs. Goslin, 5 Cal., p. 266. The terms "actions of forcible entry and detainer," in the Constitution, include actions for

7-VOL. II.

entry defined.