extension beyond that time is void, as the power of the court or judge is exhausted by the thirty days' extension.21 The time for preparing the statement on motion for a new trial may be extended not to exceed thirty days without the consent of the adverse party, but any extension for a greater period gives no right to the moving party.22

§ 866. Stipulations. A stipulation extending the time does not prohibit an order further extending the time, under the provisions of this section.23 The extension of time by stipulation does not preclude the court from granting thirty days' extension after the expiration of the time granted by the stipulation.24

§ 867. Order must be made in time.-Extension of time must be made within the period allowed for the doing of the act and while the right to do it is still alive. After the right is gone, giving further time could not be called an extension of time, but would be in effect reviving a right which no longer existed. When such an order is given, there is no period of time to extend, and the court has no further jurisdiction in the matter.25

§ 868. Shortening time.-In some cases the court may shorten the time for service of notices and doing of certain acts, such as taking depositions, making sales, etc.20

21 Bunnel v. Stockton, 83 Cal. 319, 23 Pac. 301.

22 Freese v. Freese, 134 Cal. 48, 66 Pac. 43.

23 Curtis v. Superior Court, 70 Cal. 390, 11 Pac. 652.

24 Reclamation Dist. v. Hamilton, 112 Cal. 603, 44 Pac. 1074.

25 Clark v. Crane, 57 Cal. 629; Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418; Freese v. Freese, 134 Cal. 48, 66 Pac. 43; Matter of Clary, 112 Cal. 292, 44 Pac. 569; Estate of Clary, 112 Cal. 292, 44 Pac. 569; Connor v. Southern California M. R. Co., 101

Cal. 429, 35 Pac. 990; Tregambo v. Comanche M. & Min. Co., 57 Cal. 501; Wills v. Rhen Kong, 70 Cal. 548, 11 Pac. 780.

26 Cal. Code Civ. Proc., §§ 1005, 2031; Alaska Codes, pt. 4, ch. 64, §§ 642-658; Ariz. Civ. Code, pars. 2506-2532; Idaho Rev. Codes, §§ 4229, 6062; Mont. Rev. Codes, §§ 7141, 8007; Nev. Comp. Laws, § 3503; N. Mex. Comp. Laws, §§ 3041, 3067; Or. B. & C. Codes, § 835; Utah Rev. Stats., §§ 3325, 3456; Wash. Bal. Codes, § 6020.

FORMS FOR ENLARGING TIME TO PLEAD.

§ 869. Affidavit for extension of time to plead, pending delivery of copy of account.

G. H., being first duly sworn, says that he is the attorney for the defendant in this action; that the same was commenced by the service of a summons and complaint, on the . . day of 19., and is brought to recover the sum of . . . dollars, alleged to be due from the defendant to the plaintiff upon account for goods sold [or, otherwise, state what action is brought for]; that the items of said alleged account are not set forth in said complaint, and on the . . . day of . . ., 19. ., this affiant served a written demand on the plaintiff's attorney, of which demand a copy is hereto annexed and made part hereof; that said account has not yet been served on this affiant; that the time for answering the said complaint expires on the . . . day of ., 19. ., and that the affiant is unable to prepare the answer to said complaint without said account; that the defendant has instructed this affiant to prepare an answer, and has expressed to affiant a purpose in good faith to defend the action, and, from a statement of the case in this action made by the defendant to him, the affiant verily believes that the defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint, or to some part thereof. [JURAT.]

...

G. H.

§ 870. Order extending time to plead, pending service of copy of account.

[TITLE.]

Form No. 267.

On reading and filing the affidavit of L. M., hereto annexed, and the complaint in this action, and on motion of G. H., attorney for the defendant:

Ordered, that the time for answering the complaint herein be extended for . . . days after the plaintiff shall have delivered

to the defendant's attorney a copy of the account referred to in said complaint.

And meanwhile let all proceedings herein, on the part of the plaintiff, be stayed.

Dated,

• .

19..

J. K., Circuit Judge.

§ 871. Notice of motion for extension of time to answer. Form No. 268.

[TITLE.]

Take notice, that on the affidavit of C. D., a copy of which is herewith served, and upon the complaint heretofore served and filed, the undersigned will move the court, in the courtroom of Department No. . . . at . . . on the . . . day of . . ., 19 . ., at . . o'clock in the . noon, to enlarge the time to answer days, or for such other relief as may be just. G. H., Defendant's Attorney.

herein

.

Dated,

19 ..

To E. F., Esq., Plaintiff's Attorney.

§ 872. Affidavit on motion to enlarge time to plead.

C. D., being duly sworn, deposes and says as follows:

I. I am the defendant in the above-entitled action.

II. I have fully and fairly stated the case in this cause to G. H., my counsel herein, who resides at . . . [or, at No. . .

street, in the city of . . .]; and I have a good and substantial defense, on the merits, to said action, as I am advised by my counsel, after such statement so made to him as aforesaid, and verily believe.

III. [State excuse for desiring enlargement of time.]

IV. That the complaint was served on the . . . day of . .

... 9

19 and the time to answer will expire on the . . . day of 19. ., that no extension of such time has been had, and days further time are necessary to prepare and file said

...

...

answer.

[JURAT.]

[SIGNATURE.]

§ 873. Order enlarging time to plead.

Form No. 270.

. days to

On the annexed affidavit of C. D., and on motion of G. H., his attorney, it is ordered that said defendant have. further time from and after the . . . day of . . . answer the complaint of plaintiff herein.

[DATE.]

.., 19

[SIGNATURE OF JUDGE.]

CHAPTER XXXIV.

NOTICES, AFFIDAVITS, AND ORDERS IN GENERAL.

§ 874. Motions and notices in general.-It is prescribed by the statute of California that "every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion." Mere declaration by the judge-e. g. that the injunction is no longer in force-does not constitute an order.2 The decision of a justice of the peace under proceedings supplementary to an execution is a mere order, and does not constitute a judgment within the meaning of section 974 of the California Code of Civil Procedure. It may be defined to be the judgment or conclusion of the court, upon any motion or proceeding; and includes cases where affirmative relief is granted, and cases where relief is denied. An order is a direction of a court or judge made or entered in writing, and not included in a judgment, settling some point of practice or some question collateral to the main issue presented by the pleadings, and necessary to be disposed of before such issue can be passed upon by the court, or necessary to be determined in carrying into execution the final judgment. A party in court must take notice of all orders in the case, and of pleadings filed in pursuance thereof. The effect of an order, general in its terms at its close, may be determined or ascertained by reference to the motion upon which it was made, when such motion is recited in the order at its commencement. A motion is an application for an order or a direction of the court not included in the judgment. In practice, a motion is an oral argument to the court, showing why a certain order should be made; while a notice is a written information given