855. Notice of motion to amend complaint by adding defendant. [TITLE.] .., Form No. 261. Please take notice that on the affidavit herewith served, and on all the proceedings on file in this action, the undersigned will move the court, at the courtroom thereof, at . . . on the . . day of 19 ., at . . . o'clock in the forenoon, or as soon thereafter as counsel can be heard, that the plaintiff may have leave to amend his summons and complaint in this action, by adding L. M. as a defendant therein, with proper words to charge him, and for such other and further relief as may be just. [DATE.] § 856. Order of court granting leave to amend. [TITLE.] Form No. 262. [SIGNATURE.] On motion of E. F., attorney for plaintiff in this action, notice. thereof being duly served on the defendant's counsel, and after hearing thereon, it is hereby ordered that plaintiff have leave. to amend his complaint filed herein. § 857. The same-By striking out and making new parties. Form No. 263. I. [Insert as in previous form.] II. By striking out E. B. and E. D. from being plaintiffs, and by making them defendants in said action; or by adding E. F. as a defendant herein; or by substituting the name of Christian Doe as the real name of the defendant, instead of Charles Doe, wherever the same occurs in said complaint. § 858. Affidavit for consolidation of actions. Form No. 264. [Give titles separately of the various causes.] [VENUE.] C. D., being duly sworn, says that he is the defendant [or, one of the defendants; or, if the action be against a corporation, president of the corporation defendant] in each and all of the above-entitled actions, which are all pending in the . . court aforesaid; that each of said actions is founded upon a promissory note alleged to have been made by defendant and owned by the plaintiff [or, otherwise, state the nature of the various. actions, so as to show that they are all of a class which the statute permits to be joined]. That the defendant has no defense to said actions and does not intend to defend the same [or, that the defenses are identical in all of said actions, namely: stating briefly the defenses; as, that the said notes were executed by defendant to plaintiff under duress, as more fully set forth in the answer of the defendant, a copy of which is hereto attached, and that the issues which will arise and be tried are the same in all of said actions; or, otherwise, state the nature and identity of the defenses, according to the fact]. [State whether causes are at issue, and, if so, when issue was joined; and if plaintiff has refused to consent to consolidation, state the fact.] [JURAT.] § 859. Notice of motion to consolidate actions. Form No. 265. [Give titles of all the actions separately.] [VENUE.] C. D. Take notice, that upon the affidavit of C. D., herewith served, and upon the pleadings heretofore filed and served in the aboveentitled actions, the defendant will move the court, at a .. term thereof to be held at the courthouse in the city of . . . in said county, on the . . . day of . . . next, at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order consolidating the two above-entitled actions. into one, with costs of motion. [DATE.] [ADDRESS.] G. H., Defendant's Attorney. CHAPTER XXXIII. ENLARGING TIME TO PLEAD. § 860. In general.-When an act to be done, as provided in the Code of Civil Procedure, relates to the pleadings in the action, the undertakings to be filed, the justification of sureties, the preparation of statements, or of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal, the time allowed by the code may be extended, upon good cause shown, by the judge of the superior court, in and for the county in which the action is pending, or by the judge who presided at the trial of said action; but such extension shall not exceed thirty days, without the consent of the adverse party. When it appears to the judge to whom such application is made. that the attorney of record for the party applying for the extension is actually engaged in attendance upon a session of the legislature of this state, as a member thereof, it shall be his duty to extend said time until the session of the legislature adjourns and thirty days thereafter, but not more without consent of the adverse party.1 The court may, in furtherance of justice, and on such terms as may be proper, enlarge the time for answer or demurrer;2 or may allow an answer to be made after the time limited by this code. This section is limited by its terms to cases where time is allowed by some provision of the code for the doing of some act, and is designed to enable the court to grant time additional to that allowed by the code, upon good cause shown. The party must take the initiatory steps to obtain relief before the expiration of the term at which final judgment is rendered in all cases except those mentioned in the statute. Where a demurrer to a complaint is overruled, and an application is subsequently made for leave to file an answer, the allowance of the application rests in the discretion of the court, subject to review in case 8 Id. See, also, Cal. Code Civ. 1 Cal. Code Civ. Proc., §§ 1005, 1054; Idaho Rev. Codes, §§ 4229, 4932; Mont. Rev. Codes, §§ 7141, 7190; Utah Rev. Stats., §§ 3325-3329. 2 Cal. Code Civ. Proc., § 473. Proc., 1054. 4 Vestal v. Young, 147 Cal. 715, 82 Pac. 381. 5 Casement v. Ringgold, 28 Cal. 338. of its arbitrary or unreasonable exercise. The exercise of this power by the court must in a degree depend upon the special circumstances of each case, and be so governed as to prevent delays and to promote justice. Time to file an amended pleading is not affected by this section, but it is a matter lying entirely in the discretion of the court, and, there being no statutory provision forbidding it, the court may therefore allow more than thirty days for filing such amended pleading. In such case, where no application was made to the court for leave to answer, and no meritorious defense was asserted, this court will not reverse the judgment and open the case for another trial.' 8 § 861. Computation of time.-A stipulation extending the time for one week, ending Saturday, July 4th, in which to answer, as both that day and the day following were legal holidays, has the effect of extending the time to July 6th, inclusive, and a default entered on that day is premature. In case of an extension until after ruling on a motion to strike out the complaint, the time would, by analogy, be the statutory time allowed for answering. A fraction of a day is not to be considered in computing time from one day to another, but only when the time of the successive acts performed on the same day is material.1o § 862. More than one extension.-That the court is only prohibited from granting an extension of more than thirty days at any one time, but may make several extensions of thirty days each, is in direct violation of the language of the section and of the construction thereof by the supreme court. An order granting thirty days, in addition to the ten days allowed for preparing the bill of exceptions on the judgment, exhausts the power of the court to extend the time for that purpose.12 11 § 863. Excessive extension.-An extension of time to plead for a certain time after the receipt of the remittitur in another case is void, and is beyond the power of the court to any extent • Vestal v. Young, 147 Cal. 715, 82 Pac. 381. 7 Thornton v. Borland, 12 Cal. 438. 8 Crane v. Crane, 121 Cal. 99, 53 Pac. 433. 9 Willson v. Cleaveland, 30 Cal. 192. 10 Scoville v. Anderson, 131 Cal 590, 63 Pac. 1013. 11 Cameron v. Arcata & M. R. R. Co., 129 Cal. 279, 61 Pac. 955. 12 Id. beyond the thirty days permitted by this section.18 An extension of time to plead one day after the decision of the motion to set aside the service of the summons and dismiss the action is void as to any period of time it purports to allow after the expiration of the thirty days, in addition to the time allowed by law.14 An extension of time to plead for a certain number of days after the decision of the pending motion to dismiss is void as to any period of time beyond thirty days.15 That the defendant relied upon the order extending the time to plead, which was in excess of the jurisdiction of the court, is the important fact to be considered on motion to open the default.16 Limitations upon the power to extend the time contained in this section apply only to cases therein enumerated, among which the filing of affidavits on motion for new trial is not included, and therefore the power to extend the time in such cases is found in subdivision 1 of section 659 of the California Code of Civil Procedure, and an extension for more than thirty days may be granted."7 § 864. Justice court. This section has no application to acts required to be done in the justice court to perfect the appeal to the superior court. Hence, an order by the superior court extending the time for justification of sureties on an undertaking on appeal filed in the justice court is void.18 § 865. Costs and appeal.-The service and filing of a memorandum of costs is fairly within the proper construction of this section, being substantially "a notice other than of appeal." 19 Notice of intention to move for a new trial is included within notices provided for in this section, and the court may, before expiration of the ten days allowed by the statute, extend the time for serving and filing the notice for a period not to exceed thirty days.20 Time to prepare and serve the statement on motion for a new trial may be extended by the court or judge, but not longer than thirty days, without the consent of the adverse party, and any 13 Baker v. Superior Court, 71 Cal. 583, 12 Pac. 685. 14 Kennedy v. Mulligan, 136 Cal. 556, 69 Pac. 291. 15 Gibson v. Superior Court, 83 Cal. 643, 24 Pac. 152. 16 Kennedy v. Mulligan, 136 Cal. 556, 69 Pac. 291. 17 Oberlander v. Fixen & Co., 129 Cal. 690, 62 Pac. 254. 18 McCracken v. Superior Court, 86 Cal. 74, 24 Pac. 845. 19 Beilby v. Superior Court, 138 Cal. 51, 70 Pac. 1024. 20 Burton v. Todd, 68 Cal. 485, 9 Pac. 663. |