be made by a deposit in the post-office in the place where the attorney on whom the service is to be made resides.85

§ 895. Service on non-residents.-When a plaintiff or defendant who has appeared, resides out of the state, and has no attorney in the action or proceeding, the service may be made on the clerk for him. If his sole attorney has no known office in this state, notices and papers may be served by leaving a copy thereof with the clerk of the court, unless such attorney shall have filed in the cause an address of a place at which notices and papers may be served on him, in which event they may be served at such place. Special appearance of an attorney for the purpose of motion before demurrer or answer does not entitle him to a notice of subsequent motions and proceedings.87 But the absence of a purchaser at sheriff's sale from the state does not excuse service on him of notice of a motion to set aside the execution and sale.88

§ 896. Motions-Knowledge of judge.—In all motions before a judge during the progress of a trial, he may act on his own knowledge in regard to things which, in their nature, are better known to himself than they could be to others.9 Where the judge had knowledge of matters involved in a decision on a motion, it will be presumed, if necessary to support the judgment or order, that he acted upon such knowledge.90 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.o1

§ 897. The same-Renewal of.-In all ordinary motions, where the jurisdiction is not limited by statute, it is in the discretionary power of the court or judge hearing and denying a motion to

to sufficiency of service of notice by mail, see Eltzroth v. Ryan, 91 Cal. 584, 27 Pac. 932; Murdock v. Clarke, 73 Cal. 25, 14 Pac. 385; Hogs Back etc. Min. Co. v. New Basil Co., 63 Cal.

121.

85 Thompson v. Brannan, 76 Cal. 618, 18 Pac. 783. As to sufficient publication of notice in newspaper, sce Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; Richardson v. Tobin, 45 Cal. 30. se Cal. Code Civ. Proc., § 1015.

87 Wood v. Herman Min. Co., 139 Cal. 713, 73 Pac. 588.

88 Eckstein v. Calderwood, 34 Cal. 658.

89 Southern California etc. Road Co. v. San Bernardino Nat. Bank, 100 Cal. 316, 34 Pac. 711.

90 Southern California M. R. Co. v. San Bernardino Nat. Bank, 100 Cal. 316, 34 Pac. 711.

01 Dickey v. Gibson, 113 Cal. 26, 54 Am. St. Rep. 321, 45 Pac. 15.

grant leave for its renewal.2 In a case where a motion is made to vacate a judgment entered without findings, the court has jurisdiction, and it is within its discretion to allow a motion to vacate the judgment to be renewed, although it had previously been denied.93 Motion to open default and motion to vacate judgment may be separate and distinct from each other, depending upon a different record and seeking different relief. A party is not precluded from making one of these motions because the other has been denied.**

§ 898. The same-Dilatory, not favored.-Dilatory motions. based upon special appearances are not favored, being contrary to the policy of the reformed procedure."

899. The same-Abandonment of.-The failure of the defendant to appear upon the hearing of his motion for leave to file a supplemental answer will be considered an abandonment of the motion."

§ 900. The same In transcript, when considered.-Motions copied into the transcript and entries by the clerk of rulings thereon are not parts of the record, and will not be considered on appeal unless properly brought before the court."7

§ 901. Waiver of written notice.-Written notice of the overruling of a demurrer is waived by the presence in court of the attorney for the demurring party at the time of the ruling, and the time to amend or answer runs in such case from the time when the ruling is made." Waiver of notice may be made by the party entitled to it." Appearance in court and hearing order overruling demurrer announced does not waive the right to notice of order. 100

92 Hitchcock v. McElrath, 69 Cal. 639, 11 Pac. 487; Jensen v. Barbour, 12 Mont. 566, 31 Pac. 592; Kenney v. Kelleher, 63 Cal. 442. The judge may at chambers grant leave to renew the motion. Id.

93 Mace v. O'Reilley, 70 Cal. 231, 11 Pac. 721.

94 Thompson v. Alford, 128 Cal. 227, 60 Pac. 686.

95 Burkhardt v. Haycox, 19 Colo. 339, 35 Pac. 730.

96 Wood v. Brush, 72 Cal. 224, 13 Pac. 627.

97 Fisher v. United States, 1 Okla. 252, 31 Pac. 195.

98 Wall v. Heald, 95 Cal. 364, 30 Pac. 551.

99 Forni v. Yoell, 99 Cal. 173, 33 Pac. 887; Mallory v. See, 129 Cal. 356, 61 Pac. 1123; Gardner v. Stare, 135 Cal. 118, 67 Pac. 5.

100 McCord & N. M. Co. v. Glenn, 6 Utah, 139, 21 Pac. 500; Mallory v. See, 129 Cal. 356, 61 Pac. 1123.

§ 902. Orders-Order made during vacation.-An order during vacation dismissing attachment proceedings, and ordering the attached property released, upon a motion therefor, filed and argued during term, is void, and the motion is thereafter still pending 101 The general rule is that all judicial business must be transacted in court, and authority to transact such business out of court is exceptional, and does not exist, unless expressly authorized by statute.102

§ 903. The same--Presumption in favor of. If an order of the trial court is warranted by any possible state of facts not negatived by the record upon appeal, it must be presumed, in justification of the order, that such a state of facts existed.103

§ 904. The same-Entry of in minutes.-The duty of the clerk is to enter the motion and order made thereon in the minutes of the court, and the entry should state the grounds on which the motion is based, in substance, as stated by counsel making it. These grounds need not in all cases be entered in the minutes in full. If reference to any document filed is made in the statement of grounds, the entry may, and for the sake of brevity should, refer to the same document.104 The action of the court does not depend upon the entry of its orders by the clerk, but upon the fact that the orders have been made, and whenever it is shown that an order has been made by the court, it is as effective as if it had been entered of record by the clerk.105 An order entered upon consent cannot be assigned as error.106

§ 905. Title of action.-An affidavit, notice, or other paper, without the title of the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proeeding.107

906. Transfer of motions and orders.-When a notice of notion is given, or an order to show cause is made returnable

101 Colter v. Marriage, 3 N. Mex. 351, 9 Pac. 383.

102 Carpenter v. Nutter, 127 Cal. 61, 59 Pac. 301.

103 Cockrill v. Clyma, 98 Cal. 123, 32 Pac. 888.

104 Williams v. Hawley, 144 Cal. 97, 77 Pac. 762.

105 Niles v. Edwards, 95 Cal. 47, 30 Pac. 134; Von Schmidt v. Widber, 99 Cal. 511, 34 Pac. 109.

106 Putnam v. Lyon, 3 Colo. App. 144, 32 Pac. 492.

107 Cal. Code Civ. Proc., § 1046; Mills v. Dunlap, 3 Cal. 94; Butler v. Ashworth, 100 Cal. 334, 34 Pac. 780.

before a judge out of court, and at the time fixed for the motion, or on the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge, before whom it might originally have been brought.108

§ 907. Denial of execution.-When a copy of a written instrument is contained in an answer or annexed thereto, to avoid an admission of its genuineness and due execution, the plaintiff must file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant.109 But the execution of such instrument is not deemed admitted by failure to deny the same on oath if the party desiring to controvert the same is, upon demand, refused an inspection of the original.110

-

§ 908. Actions for real property. The court in which an action is pending for the recovery of real property, or a judge thereof, or a county judge, may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof, and of any tunnels, shafts, or drifts thereon, for the purpose of the action.111

§ 909. Service of order. The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon the property with necessary surveyors and assistants, and make such survey and measurement; but if any unnecessary injury be done to the property he is liable therefor.112

§ 910. Costs, security of.-After the lapse of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking has been filed, the court or judge may order the action to be dismissed.118 Where notice requiring security for costs was given, unaccompanied by an order staying proceedings, and judgment was rendered for defendant, and

108 Cal. Code Civ. Proc., § 1006. 109 Cal. Code Civ. Proc., § 448. Sce In re Garcelon, 104 Cal. 581, 43 Am. St. Rep. 134, 38 Pac. 414, 32 L. R. A. 595. 110 Cal. Code Civ. Proc., § 449. As

to order for an inspection, see Cal Code Civ. Proc., § 1000.

111 Cal. Code Civ. Proc., § 742. 112 Cal. Code Civ. Proc., § 743. 113 Cal. Code Civ. Proc., § 1037.

plaintiff appealed, it was held that the motion to dismiss the action came too late after judgment, and that the motion to dismiss the appeal must be denied, the undertaking on appeal being sufficient.11 The foregoing decision seems to take it for granted that an order for a stay of proceedings would be proper, but whether it is necessary, quære.1

117

115

§ 911. Costs, security of-From whom required.-Security for costs and charges which may be awarded against the plaintiff, not exceeding three hundred dollars, may be required by the defendant when the plaintiff resides out of the state or is a foreign corporation.116 After the undertaking or bond, in the form specified, is given, a new or additional undertaking may be required by the court, when the first is deemed insufficient; but the court has no power to dispense with the giving of the first bond or undertaking. The contest of the probate of a will is not an action provided for in this section, and therefore a non-resident contestant need not give this security.118 In New York, a plaintiff who is a non-resident at the time of commencing his action is not excused from filing security for costs by the fact that he afterwards became a resident.119 The defendant has the right to security for costs only, where all the plaintiffs are non-residents.120 A foreign government suing in a court of the state may be required to file security for costs.121 The principal office or place of business of a corporation may be said to be its residence.122 In California, a new or additional undertaking may be ordered, upon proof that the original undertaking is insufficient. 128 It was formerly held otherwise in New York.12.

114 Comstock v. Clemens, 19 Cal. 77. 115 See Cal. Code Civ. Proc., § 1036. 116 Id.

117 Meade Co. Bank v. Bailey, 137 Cal. 447, 70 Pac. 297.

costs, Swift v. Stine, 3 Wash. T. 518, 19 Pac. 63; Robinson v. Haller, 8 Wash. 309, 36 Pac. 134; Marsh v. Kinna, 2 Mont. 547.

121 Republic of Mexico v. Arran

118 Estate of Joseph, 118 Cal. 660, gois, 3 Abb. Pr. 470. 50 Pac. 768.

119 Ambler v. Ambler, 8 Abb. Pr. 340.

13

120 Ten Broeck v. Reynolds, How. Pr. 462. See, as to security for

122 Jenkins v. California Stage Co., 22 Cal. 537.

123 Cal. Code Civ. Proc., § 1036. 124 Hartford Quarry Co. v. Pendleton, 4 Abb. Pr. 460.