Procedure of California that after appearance a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him, unless he be imprisoned for want of bail. A party cannot render himself unable to receive a notice, and then be heard to complain because notice is not given.5 Notices must be in writing, and if any paper upon which the motion is based has not previously been served upon the party to be notified, and was not filed by him, a copy of such paper must accompany the notice. It may be served upon the party or his attorney.46 Where notice of a decision is required to be given, written notice is usually intended.47

§ 885. Notice to attorney.-It is the duty of an attorney to communicate to his client whatever information he acquires in relation to the subject-matter of the suit, and he will be presumed to have performed his duty, and notice to him is constructive notice to his client.48 The control of the course of the action in the court rests exclusively with the attorney, where the party appears with an attorney, and the court has no authority to recognize any one else in the conduct or disposition of that case, and, therefore, a stipulation signed by the party himself providing for certain steps in the action will be disregarded by the court. 19 Where a party changes his attorney in an action, and there is no regular substitution of attorneys as pointed out by statute, notices may be served on the attorney of record.50 Notice of motion for new trial must be given by the attorney of record."1

§ 886. Order of court-Entry nunc pro tunc.-A court has no power, after the adjournment of a term, to direct the clerk to enter in the minutes, nunc pro tunc, an order alleged to have been made at the adjourned term, when there is nothing in the record to show that such order was made.52 An order nunc pro

44 Cal. Code Civ. Proc., § 1014. 45 Orr Water Co. v. Reno Water Co., 19 Nev. 60, 6 Pac. 72.

46 Cal. Code Civ. Proc., § 1010. 47 Forni v. Yoell, 99 Cal. 173, 176, 33 Pac. 887.

48 Bierce v. Red Bluff Hotel Co., 31 Cal. 160. See Weeks on Attorneys, § 237.

49 Toy v. Haskell, 128 Cal. 558, 79 Am. St. Rep. 70, 61 Pac. 89.

50 Grant v. White, 6 Cal. 55.

51 Prescott v. Salthouse, 53 Cal. 221. Must be served upon the attorney of record. Frost v. Meetz, 52 Cal. 664. See, also, Cal. Code Civ. Proc.. § 1015.

52 Hegeler v. Henckell, 27 Cal. 491.

tunc may be made to correct a mistake in failing to enter an order which was actually made, or which should have been made as a matter of course.53 Notice of motion to enter an order nunc pro tunc is made by the party to whom the notice should have been given, being present in court at making of the motion, and without objection taking part in and arguing the same."*

§ 887. Order to show cause.-An order to show cause why a judgment should not be vacated must be served, or it will be error to vacate the judgment on such order.55 An order to show cause why a commission should not issue to take a deposition is, if served upon the adverse party, a sufficient notice to him to justify the issuance.5

§ 888. Order, when granted.-Motion for any rule or order is not allowed when the court is equally divided. If an affirmative decision be indispensable, the case stops and the parties go out of court; otherwise, the case stands as if no motion had been made.57 A motion made at one term, not being decided nor continued, the court will order a continuance nunc pro tunc, and the defendant will not be required to take up the motion at that term, as he had the right to suppose that it was abandoned.58

§ 889. Res adjudicata.-In its strictest sense it does not apply to mere orders made on motion in a proceeding.59

§ 890. Restitution of rights after reversal of judgment.Where the judgment of a lower court is reversed or modified on appeal, although the supreme court may restore the property or rights lost by the erroneous judgment or order, this does not exclude the lower court from exercising the same power. The party aggrieved may proceed in the lower court by motion, against which there seems to be no statute of limitations where there is no unreasonable delay.""

53 Estate of Skerrett, 80 Cal. 62, 22 Pac. 85. See, also, Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074.

54 Herman v. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 Pac. 509. 55 Vallejo v. Green, 16 Cal. 160. 56 Dambmann v. White, 48 Cal.

439.

57 Goddard v. Coffin, 2 Ware, 382, (Davis, 381), Fed. Cas. No. 5490.

58 Hurd v. Williams, 4 McLean, 239, Fed. Cas. No. 6918.

59 Estate of Harrington, 147 Cal. 124, 109 Am. St. Rep. 118, 81 Pac. 546.

60 Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459. See, also, Pico v. Cuyas, 48 Cal. 639.

891. Rule to show cause.-It has been held by the supreme court of the United States that the rule on the judge of a district court to show cause is a rule upon the judge to explain his conduct; and furnishes a case by implication which makes it proper that the supreme court should know the reason for his decision. The rule ought not to be granted when the record does not show mistake, misconduct, or omission of duty on the part of the court, unless a prima facie case be made out by affidavit. Malicious conduct of an officer in executing process cannot be reached by motion.62 But when a sheriff, having received an execution on which costs are due, fails to make them when practicable, he becomes responsible, and may be reached by motion. An order of the client or attorney cannot change this liability.63

61

§ 892. Service, how made.-Service may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of nine in the morning and five in the afternoon, in a conspicuous place in the office; or if it be not open so as to admit of such service, then by leaving them at the attorney's residence, with some person of not less than eighteen years of age, if his residence is in the same county with his office; and if his residence is not known or is not in the same county with his office, or, being in the same county, it is not open, or there is not found thereat any person of not less than eighteen years of age, then by putting the same, inclosed in a sealed envelope, into the post-office, directed to such attorney at his office, if known; otherwise, to his residence, if known; and if neither his office nor residence is known, then by delivering the same to the clerk of the court for the attorney; 2. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person; and if his residence is not known, by delivering the same to the clerk of the court for such party. The "delivery," which constitutes a personal service

64

61 Postmaster-General v. Trigg, 11 Pet. 173, 9 L. Ed. 676.

62 Smith v. Miles, Hempst. 34, Fed. Cas. No. 13079a.

63 Lewis v. Hamilton, Hempst. 21, Fed. Cas. No. 8324a.

64 Cal. Code Civ. Proc., § 1011, as amended 1907.

69

66

under this section, need not be made by the party attempting to make the service, but can be effected through a clerk or messenger, or through any agency by which a delivery can be made.65 In the absence of an attorney from his office, the service of a notice on him is sufficiently made by depositing a copy thereof through the door of his office into a postal box which had been placed there for reception of documents. Such person being in charge of an office must be understood to be in charge of the whole of it, and, therefore, a paper placed before his eyes in a conspicuous place on a desk therein is, in contemplation of the law, left "with a person having charge of the office." The power of a clerk of an attorney or a person in charge of his office, by leaving notice with whom service may be made, is not by implication sufficient to bind his principal by any agreement with reference to the case.68 An affidavit which states that affiant "left a true copy at the office of C. & B., the attorneys for the defendant," is insufficient. In all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt.70 Reading an order of court to the party to be served is not a compliance with a statute which requires that such party shall have reasonable notice in writing of the order." A notice can lawfully be served on Sunday, although it need not be served until the following day. Service of notice is not "judicial business," within the meaning of the constitution (art. VII, § 5) of California.73 Notice of setting a cause for trial in a justice's court is jurisdictional, and must be served as prescribed in this chapter. Proof of such service should be required. The justice should not accept verbal statement that the notice has been served upon the defendant; nor can waiving of service of such notice be made by talking over a telephone."

72

65 Heinlen v. Heilbron, 94 Cal. 636, 30 Pac. 8.

66 January v. Superior Court, 73 Cal. 537, 15 Pac. 108.

67 People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381.

68 Page v. Superior Court, 122 Cal. 209, 54 Pac. 730.

69 Gallardo v. Atlantic & P. T. Co., 49 Cal. 510.

70 Cal. Code Civ. Proc., § 1015. 71 Hart v. Gray, 3 Sumn. 339, Fed. Cas. No. 6152.

72 Chesapeake etc. Canal Co. V. Bradley, 4 Cranch C. C. 193, Fed. Cas No. 2646.

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

74 Elder v. Justice's Court, 136 Cal. 364, 68 Pac. 1022.

§ 893. Proof of service.-Proof of service of notice of appeal originally defective may be cured by an affidavit filed in pursuance of leave for that purpose.75 The fact of service of notice, rather than evidence thereof, gives the court jurisdiction, and service of notice of appeal may be shown in other modes than by being incorporated in the transcript." Service of notice, if not shown by official certificate or by admission of parties served, must be proved by affidavit of some competent person. An affidavit of a third person is entitled to as much weight as that of the party or his attorney." Affidavit of service in cases other than actual personal service must show all requirements of law, to the effect that service has been complied with, and also the existence of conditions authorizing service in the mode adopted."

§ 894. Service by mail.-Service by mail may be made where the person making the service and the person on whom it is to be made reside or have their offices in different places, between which there is a regular communication by mail. In such case, the notice or other paper must be deposited in the post-office, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The service is complete at the time of deposit, but if within a given number of days after such service a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address, such extension not to exceed thirty days in all. 80 This does not apply to time set for justification of sureties upon appeal-bond, nor to time for filing a paper, such as a notice of appeal.82 Distance is a question of fact, to be determined by proof.83 A party relying upon a service of notice by mail must show strict compliance with the statute.

81

75 Schloesser v. Owen, 134 Cal. 546, 66 Pac. 726; Herman v. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 Pac. 509.

76 Sutter County v. Tisdale, 128 Cal. 180, 60 Pac. 757; Martin v. De Arnelas, 139 Cal. 41, 72 Pac. 440.

77 Moore v. Besse, 35 Cal. 184. 78 Mohr v. Byrne, 131 Cal. 288, 63 Pac. 341.

79 Cal. Code Civ. Proc., § 1012.

Service by mail cannot

80 Cal. Code Civ. Proc., § 1013. See, also, Cal. Code Civ. Proc., 1005. 81 Brown v. Rouse, 115 Cal. 619, 47 Pac. 601.

82 McDonald v. Lee, 132 Cal. 252, 64 Pac. 250.

83 Neely v. Naglee, 23 Cal. 152. 8 Matter of Tracey, 136 Cal. 385, 69 Pac. 20; People v. Alameda Turnpike Co., 30 Cal. 182; Heinlen 1. Heilbron, 94 Cal. C36, 30 Pac. 8. As