to the opposite party, that at a certain time and place the party giving the same will move the court for a certain order, stating what. It is also necessary for the moving party to state in such notice the grounds or particular points upon which the motion will be made. Written notice of motions is required in all cases except those made during the progress of a trial;10 and also upon what the motion will be founded, as upon affidavits, papers on file, etc. The attention of the court must be called to the relief asked. Mere filing of a written application is not sufficient as a motion. It is also provided by our statute that motions must be made in the county in which the action is brought, or in an adjoining county within the same district.12 Thus the practitioner may readily know where the motion must be made. The title of the action must also be correctly given, with the date and hour of the day when it will be made, and the particular place-e. g. the city hall, courthouse, etc. 11 875. The true practice is to be very specific in all questions of time, place, and object of the motion. There are certain. motions which are termed contested motions, and certain others termed ex parte motions. The former always require previous notice, the latter never. An order made without notice may be vacated or modified without notice.13 When a written notice of a motion is necessary, it must be given, if the court is held in the county in which at least one of the attorneys of each party has his office, five days before the time appointed for the hearing, otherwise ten days. When served by mail one day must be added for every twenty-five miles of distance between the place of deposit and the place of service, such increase not to exceed thirty days in all; but in all cases the court, or a judge thereof, may prescribe a shorter time.1 Freeborn v. Glazer, 10 Cal. 337; Quimby v. Boyd, 8 Colo. 194, 6 Pac. 462. 10 Colo. Civ. Code, § 372; Taylor v. Derry, 4 Colo. App. 109, 35 Pac. 60; Mallan v. Higenbotham, 10 Colo. 264, 15 Pac. 352. 11 Wallace v. Lewis, 9 Mont. 403, 24 Pac. 22. 12 Cal. Code Civ. Proc., § 1004; Alaska Codes, pt. 4, ch. 49, §§ 491, 494; Ariz. Civ. Code, pars. 1567 Notice of motion is not neces 1578; Idaho Rev. Codes, § 4881; 13 Cal. Code Civ. Proc., § 937; Coburn v. Pacific L. & M. Co., 46 Cal. 31. 14 Cal. Code Civ. Proc., § 1005. sary except when the statute requires it, or when directed by a court or judge in pursuance thereof.15 This is the statutory rule, but the court, in the exercise of sound discretion, may extend or even shorten the time. These are questions which arise in the course of the action, and only relate to the practice, and, so far as allowable by the statute, are generally regulated by the rules of each particular court, a full knowledge of which is too frequently not regarded by the profession as essential. § 876. Service of notice.-The question of service of notice, where important rights are to be affected, must be carefully considered. The statute must be strictly followed to insure due and legal service, as nothing will be left to implication. Unless the statute be strictly followed, the court will not have acquired jurisdiction to make the order asked for, and the entire proceedings will be illegal. Frequently notice is waived by stipulation of attorneys not in writing. This may be sufficient among honorable practitioners, but it is not the true practice, as it sometimes fails of its object; whereas, if the directions of the statute be strictly followed, no misunderstanding can arise. 17 § 877. Appearance.-Service of notice of appearance must antedate or be contemporaneous with the service of all other notices and papers.16 Appearance and motion to set aside a judgment upon which it is admitted the defendant was actually served with summons cures a misnomer of the defendant in the return of service. A party intending to appear specially and move to set aside a default and judgment upon the ground that the court has no jurisdiction over his person, because there has been no valid service of summons, must carefully occupy that ground exclusively, and must keep out of court for all other purposes, if he would refrain from making a general appearance. 18 Service of summons after the three years prescribed by section 581 of the Californa code, entry of its default, and appearance solely for the purpose of asking that the action be dismissed, cannot be held voluntary appearance such as will defeat the right to dismissal under said section.19 Special appearance may 15 Bush v. Geisey, 16 Or. 267, 19 Pac. 122. 16 Steinbach v. Leese, 27 Cal. 297. 17 Thompson v. Alford, 135 Cal. 52, 66 Pac. 983; Thompson v. Alford, 128 Cal. 227, 60 Pac. 686. 18 Security L. & T. Co. v. Boston & S. R. F. Co., 126 Cal. 418, 58 Pac. 941, 59 Pac. 296. 19 Sharpstein v. Eells, 132 Cal. 507, 64 Pac. 1080. be made for the purpose of quashing summons or proof of service, and such is not a general submission to the jurisdiction of that court.20 A stipulation extending the time to plead, if it could in any event be considered an appearance, must be made before the expiration of three years, or it could not be held a bar to dismissal under that section.21 § 878. Computation of time. The time within 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.22 When the act to be done relates to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the preparation of statements, or of bills of exceptions, or of amendments thereto, or the service of notices other than of appeal, the time allowed by this 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; except that when it appears to the judge to whom said application is made, that the attorney of record for the party applying for said extension is actually engaged in attendance upon a session of the state legislature, as a member thereof; in which case it will be the duty of said judge. to extend said time until the legislature adjourns, and thirty days thereafter.23 Shortening the time of notice by the judge will in absence of any showing to the contrary, be deemed made for sufficient cause." § 879. Consolidation of actions. Whenever two or more actions are pending at one time between the same parties and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated.25 The su 20 McDonald v. Agnew, 122 Cal. 448, 55 Pac. 125. 21 Grant v. McArthur, 137 Cal. 270, 70 Pac. 88. 22 Cal. Code Civ. Proc., § 12. See Derby v. City of Modesto, 104 Cal. 522, 38 Pac. 900; Hoyt v. San Francisco etc. R. R. Co., 87 Cal. 610, 25 Pac. 160, 1066. 23 Cal. Code Civ. Proc., § 1054, as amended by act of January 31, 1895. P. P. F. Vol. I-34 See Reay v. Butler, 99 Cal. 477, 480, 33 Pac. 1134. As to extension of time for filing notices under this section, see Burton v. Todd, 68 Cal. 485, 9 Pac. 663. 24 Cal. M. & S. Bank v. Graves, 129 Cal. 649, 62 Pac. 259. 25 Cal. Code Civ. Proc., § 1048; N. Y. Code Civ. Proc., § 817; Putnam v. Lyon, 3 Colo. App. 144, 32 Pac. 492. preme court will not consolidate suits brought upon distinct causes of action.26 § 880. Construction.-If there is any ambiguity in the terms of a notice rendering its meaning doubtful, the construction must be most strongly against the party giving the notice.27 § 881. Discretion.-All the proceedings in a case are supposed to be within the control of the court while they are in paper, and before a jury is sworn or judgment given. Therefore, orders may be revised, and such as in the judgment of the court may have been irregular or improperly made may be set aside.28 A question whether a party had a right to proceed summarily on motion to vacate a decree in the circuit court is merely one of practice, to be governed by the rules prescribed by the supreme court, and the established principle and usage of a court of chancery.29 When granting of a motion is proper upon one of the grounds stated, the court may disregard other grounds.30 § 882. Contents of notice.-A notice of motion must state the grounds thereof; hence, an appeal will not be dismissed for failure to file an undertaking, where such is not made the ground of the motion, as, had such ground been stated, it might have been made to appear that the undertaking was waived.31 Grounds need not be stated at length in making oral motions; but the court must in some way be informed thereof; this may be done by reference to some paper on file.32 Grounds of motion for judgment on pleadings are sufficiently stated as follows: That a motion will be made "upon the pleadings, papers, files, and records in said action, and upon the ground that the answer on file herein constitutes no defense to the cause of action or any portion thereof stated in the complaint." 33 In the justice's 26 Wallace v. Eldredge (No. 2), 27 Cal. 498. 27 Carpentier v. Thurston, 30 Cal. 123. 28 Breedlove v. Nicolet, 7 Pet. 413, 8 L. Ed. 731. An order obtained "by means of an artifice and trick practiced upon the court" may be set aside by the court which made it. Page v. Page, 77 Cal. 83, 19 Pac. 183. 29 Wiggins v. Gray, 24 How. 303, 16 L. Ed. 688. 30 Toy v. Haskell, 128 Cal. 558, 79 Am. St. Rep. 70, 61 Pac. 89. 31 Clarke v. Mohr, 125 Cal. 540, 58 Pac. 176. 32 Williams v. Hawley, 144 Cal. 97, 77 Pac. 762. 33 Hearst v. Hart, 128 Cal. 327, 60 Pac. 846. court, notice of setting a cause for trial is jurisdictional, and must be in writing.34 35 § 883. Due notice.-Due notice cannot be defined. Circumstances must control each case.3 Notice to a deputy marshal is equivalent to notice to the marshal himself.36 § 884. Notice essential.-An amendment of a judgment to correct a mere clerical misprision may be made by the court of its own motion, and with or without notice."7 Notices should specify the ground of motion and give information to the adverse party as to the character of the objections which will be taken,e. g. notice of motion to dissolve attachment, "because said writ was improperly issued," is insufficient; it should specify, as the grounds of the motion, wherein it would be urged that the writ was improperly issued.38 Special motions, unlike those granted of course, require allowance by the judge, and previous notice to the adverse party.39 Upon application by counsel for the plaintiff, a day was assigned to argue the question of the jurisdiction of the court to proceed in the cause, upon the condition that notice should be given to the defendant, to enable him to employ counsel in the interim, as the court would not feel bound by its decision in an ex parte argument if the defendant should desire to have the question again argued.40 Previous notice of a motion for the appointment of a receiver is unnecessary when the parties to be affected are in court by counsel. A motion to produce a paper in the possession of the plaintiff, which is necessary to enable the plaintiff to plead, may be granted, in the discretion of the court, although no notice has been given; otherwise; when possession of a paper is desired to be used in evidence.42 The above references are more especially applicable to the practice in the United States courts. It is prescribed by the Code of Civil 34 Elder v. Justice's Court, 136 Cal. 364, 68 Pac. 1022. 35 Lawrence v. Bowman, 1 McAll. 419, Fed. Cas. No. 8134. 36 United States v. Bank of Arkansas, Hempst. 460, Fed. Cas. No. 14515. 37 Dickey v. Gibson, 113 Cal. 26, 54 Am. St. Rep. 321, 45 Pac. 15; Scamman v. Bonslett, 118 Cal. 93, 62 Am. St. Rep. 226, 50 Pac. 272. 38 Freeborn v. Glazer, 10 Cal. 337. 41 39 United States v. Parrott, 1 McAll. 447, Fed. Cas. No. 15999; Nevitt v. Crow, 1 Colo. App. 453, 29 Pac. 749. 40 New Jersey v. New York, 3 Pet. 461, 7 L. Ed. 741. 41 McLean v. Lafayette Bank, 3 McLean, 503, Fed. Cas. No. 8887. 42 Bronson v. Kensey, 3 McLean, 180, Fed. Cas. No. 1927. 43 See Cal. Code Civ. Proc., §§ 449, 1938. |