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ishing the one against whom the decision is rendered. Its purpose is to settle disputes and protect people in their rights. But the thought of punishment is the motive that brings every criminal case into court. The defendant is accused of committing a crime, and the court is called upon to determine whether he is guilty or not and to name the punishment if he is guilty. Criminal cases are brought into court by prosecuting attorneys in the name of the people of California, for all the people are injured when a crime is committed. If “A” breaks a contract which he has made with “ B," in the eyes of the law, "B" alone is injured; and if suit is brought against “ A,” “B” must bring it. This, of course, is a civil suit. When the case is decided, the costs of the trial are paid by the one who loses, unless assessed by the court to both parties. If “A” steals money from “ B,” in the eyes of the law the people of California are injured, and the district attorney, or the city prosecuting attorney, has “A” arrested and prosecutes him before the court in the name of the people. All the expenses of the trial, except what “A” pays his attorney, are paid from the county or city treasury.
197. Kinds of Civil Cases. Civil cases are divided into two great classes: law cases and equity cases. The distinction between law and equity is too complicated to be fully set forth in a book like this. In general, it may be
1 Costs do not include attorneys' fees. They consist of certain fees that must be paid to the clerk of the court for services which he renders, to the sheriff or other peace officers for serving papers, to jurors and witnesses for time spent and expenses incurred in connection with the trial, and other charges allowed by law. Officers who receive salaries retain no money collected as fees.
2 Pomeroy's Equity Jurisprudence is a complete treatise on equity. The first 73 pages of the first volume contain a good discussion of the origin and nature of equity. For shorter accounts see Andrews's American Law, Dole's Talks about Law, the American Encyclopedia and other encyclopedias.
pointed out that equity jurisprudence grew up in England centuries ago to supplement and mitigate the rigor of the common law. Law and equity were administered by separate courts, and the equity courts gave relief in many cases where the law courts could not. For example, the law courts could award damages for injuries, for nuisances, or for breaches of contract; but the courts of equity could forbid the commission of injuries, could suppress nuisances, and could compel the performance of contracts. The law courts, because of their complicated procedure and the unyielding character of the laws which they administered, often worked injustice when they attempted to handle cases involving complicated and delicate human relationships; while the courts of equity, because of their more simple procedure, and the flexibility of the rules which governed them, handled such cases effectively and with justice.
Since 1873 law and equity have been administered by the same courts in England. Both are administered by the same courts in California and in all other states of the Union, except five, which still have separate courts of law and equity. The word “ law” as now used includes equity, but there are still important differences between cases at law, and cases in equity. Law cases are more numerous than equity cases, for they include all damage suits for injuries or for breaches of contract, suits for money claimed on contract, suits affecting land titles and the ownership of personal property, etc. Equity cases include cases that arise in connection with trusts and their administration, and suits for the enforcement or the modification of contracts,
1 New Jersey, Delaware, Tennessee, Mississippi, and Alabama. In the federal system, law and equity are administered by the same courts, but according to two distinct methods of procedure. Each court keeps separate dockets of law and equity cases, and the two kinds of cases are quite differently conducted.
the enforcement of liens, the suppression of nuisances, the prevention of injuries, and for other kinds of preventive relief. The issuing of injunctions is probably the most common exercise of equity jurisdiction by our courts.
198. The Steps in a Civil Suit.' — The steps in a civil suit are as follows:
1. The Pleadings. - The pleadings consist of a correspondence through the court between the plaintiff and the defendant, the purpose of which is to get before the court the exact cause of the dispute. The plaintiff files his complaint with the clerk of the court, or with the judge if there is no clerk. The complaint is a statement of the facts upon which he bases his claim against the defendant. The clerk, or the judge, issues a summons to the defendant directing him to appear and answer the complaint within ten days. The summons, together with a copy of the complaint, may be served on the defendant by the sheriff, or by any other person over eighteen years of age who is not interested in the case.
If the defendant fails to answer, judgment is rendered in favor of the plaintiff. On his part the defendant may object to the form of the complaint, or deny that the court has jurisdiction to try the case, or deny the facts stated in the complaint, or admit the facts but deny that they constitute a cause for action, or set up a counterclaim against the plaintiff, or plead something else to prevent or delay action. If the justice of the case demands it, the court may permit the plaintiff to amend his complaint, and the defendant to file an additional statement.
1 Code of Civil Procedure, $ 307 seq.
2 Most of our township courts, presided over by justices of the peace, have no clerks.
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2. Provisional Remedies. While the pleadings are in progress, the plaintiff may have the power of the court to protect his interests. If the defendant is about to escape from the state in order to defraud him, he may cause his arrest; if the suit is to gain possession of property, and he has cause to believe that the defendant will dispose of it, he may ask the court to direct the sheriff to take possession of it; if the suit is to collect a debt, and the plaintiff fears that the defendant will secrete his property in order to escape payment, he may have a writ of attachment against the property; if the suit is to compel the defendant to refrain from some act or enterprise that is injuring him, he may ask the court for a temporary writ of injunction. These provisional remedies are, of course, granted according to regulations imposed by law.
3. The Trial. — The pleadings make clear the exact
· point or points at issue between the plaintiff and the defendant. The issue may be one of law or one of fact; that is, it may be a dispute over some point of law or over some fact or facts brought out in the pleadings. An issue of law is tried by the judge. An issue of fact is tried by the judge if the case is a suit in equity; and by a jury if it is a suit at law, unless a jury trial is waived. A trial by the judge consists of the examination of witnesses, the arguments of the attorneys, and the decision of the case. A jury trial consists of the selection of a jury, the examination of witnesses, the arguments of the attorneys, the instructions to the jury by the judge, and the rendering of the verdict by the jury.
Provision is made for settling civil disputes by a reference rather than by a trial in court. When this method is adopted, after the pleadings have been completed in court, the judge orders that the issue be submitted either to special referees chosen for the purpose, or to the regular court commissioner of the county. Except in certain special cases, both parties must agree to the reference. There may be three referees or only one, and the method of their selection is provided for in the law. The referees, or the court commissioner, after hearing the case, must report to the court, and the decision or verdict thus reported will stand as the decision of the court, unless set aside for cause by the court.
1 See section 7, article I of the constitution.
4. Judgment and Execution. — The judgment in any case is the order of the court as to its final settlement and must of course be in harmony with the outcome of the trial. It may settle the title to a piece of land; may direct the payment of a certain sum of money, the relinquishment of certain property, or the fulfillment of a certain contract; may order that a certain act or enterprise be discontinued; etc. In case the person against whom the judgment is directed refuses to comply with its requirement, the court, on request of the other party, issues a writ of execution, ordering the sheriff to see to its enforcement.
199. Appeals in Civil Cases. — After a judgment is rendered, but before it is executed, the losing party, upon certain definite grounds which are carefully specified in the law, may appeal to a higher court. The law contains minute provisions as to the time and method of taking an appeal. It must be on certain definite grounds; as, for example, that the judge in the lower court erred in admitting, or excluding, certain evidence, or in instructing the jury; or that the verdict of the jury, or the decision of the court, was not supported by the law and the evidence introduced at the trial. The proceedings in the higher court are based on the record of the case sent up from the court below. There is no jury and no witnesses are examined. The record is submitted and the arguments of the attorneys are presented. The court either affirms, modifies, or reverses the judgment of the lower court. If it reverses the judgment, it may order