FORMS AND PROCEEDINGS ON THE PART OF A DEFENDANT AFTER SERVICE OF SUMMONS AND BEFORE ANSWER.

A defendant must, after the service of a summons in an action on him, and within the time prescribed by law for answering the complaint in the action, answer such complaint, or demur thereto, (unless such time be extended,) or his default may be entered.

If the attorney of the defendant has not appeared in the action by answer or demurrer, he should give notice in writing of his appearance, which may be according to the following form:

FORM NO. 133.

NOTICE OF APPEARANCE IN AN ACTION.

[Name of Court.]

You will take notice that I appear for the defendant C D, in

this action.

[Dated.]

I J,

Attorney for the Defendant.

To G H, Esq.,

Attorney for Plaintiff.

If the appearance for the defendant is not intended to be a general appearance, but it is intended to be an appearance for a special purpose, the notice of appearance may be according to the following form:

FORM NO. 134.

NOTICE OF APPEARANCE FOR A SPECIAL PURPOSE.

[Name of Court.]

You will take notice that I appear in this action for the defendant, C D, for the special purpose of [state the special purpose.]

[Date.]

I J,

Attorney for the Defendant.

To G H, Esq.,

Attorney for Plaintiff.

Evidence of service of these notices may be, and should be, either by the admission of the attorneys for plaintiff, or by affidavit, and it should be

attached to, or endorsed on a copy of the notice, and such copy should be then filed in the action.

The attorney for defendant should ascertain whether it would be necessary before answering or demurring to have the time to answer as stated in the summons extended; this may be done by stipulation of counsel, or by an order of a judge of the court, which order may be according to the following form:

FORM NO. 135.

ORDER EXTENDING TIME TO ANSWER.

[Name of Court.]

day of

to

Good cause appearing therefor, it is ordered that the defendant, C D, have to and including the answer the complaint in this action. [Date.]

Judge.

The order, if obtained, should be filed in the action; a motion, or the pendency thereof, does not extend the time to answer or demur. In California, section 1054 of the Code of Civil Procedure prescribes acts to be done, and provides in what cases the time for doing which, can be extended by an order of a judge, and the time for which the extension can be made.

Before demurring or answering the defendant may desire to have the summons, or the service thereof quashed, and in such case his appearance in the action should be special, for that purpose. He may desire to have irrelevant or redundant matter stricken out of the complaint; he may wish to have a copy of the account sued on, if the action be for an indebtedness on an account. He may wish to have an inspection of the written instrument sued on, when a copy thereof is annexed to, or is set out in the complaint, in which case, unless he is denied an inspection of such instrument, his answer must be verified, although the complaint be not verified; and he may, in California, and perhaps in other states, wish to have a non-resident plaintiff, or a foreign corporation plaintiff give security for costs; and if the action be not commenced in the proper county for the trial of the action he may wish to have the action transferred to the proper county for trial.

FORM NO. 136.

NOTICE OF MOTION TO QUASH SUMMONS, OR ITS SERVICE.

[Name of Court.]

You will take notice that defendant will move the court at the court room No.-] thereof on the day of

at

o'clock m., or as soon thereafter as counsel can be heard, to quash the summons in this action, [or to set aside the service of the summons in this action] on the ground that said summons is defective; [or on the ground that the service

of the summons was not properly made] such motion will be made on the summons in the action; [or on the summons and the evidence of the service thereof, endorsed on, [or attached to] said summons] and on affidavits, copies of which are attached to this notice.

[Date.]

To G H, Esq.,

Attorney for Plaintiff.

I J,

Attorney for Defendant.

Evidence of the service of such notice and of the copies of the affidavits attached thereto, should be filed in the action, with a copy of the notice.

FORM NO. 137.

NOTICE OF MOTION TO STRIKE OUT PORTIONS OF COMPLAINT.

[Name of Court.]

at

o'clock

You will take notice that the defendant in this action will move said court at the court room [No.-] thereof on the day of m., or as soon thereafter as counsel can be heard, to strike out as irrelevant, and as redundant the following portion of the complaint: [Describe the portions to be stricken out.] the motion will be made on the complaint in the action. [Date.]

I J,

Attorney for Defendant.

To G H, Esq.,

Attorney for Plaintiff.

Evidence of the service of the notice should be filed.

FORM NO. 138.

DEMAND FOR A COPY OF ACCOUNT SUED ON.

[Name of Court.]

The defendant in this action demands a copy of the account sued on in this action.

[Date.]

I J,

Attorney for Defendant.

To G H, Esq.,

filed.

Attorney for Plaintiff.

Evidence of service of a copy of this demand and the demand should be

NOTICE OF

FORM NO. 139.

MOTION FOR ORDER PRECLUDING PLAINTIFF

FROM GIVING EVIDENCE OF AN ACCOUNT SUED ON.

[Name of Court.]

You will take notice that defendant will move said court at the court room thereof on the

at

o'clock

day of

m., or as soon thereafter as counsel can be heard, that plaintiff be precluded from giving evidence of the account sued on in this action; said motion will be made on the papers in this action, and on an affidavit, a copy of which is herewith served; and on the ground that a copy of said account has been demanded by the defendant, and has not been given to him.

[Date.]

I J,

Attorney for Defendant.

To G H, Esq.,

Attorney for Plaintiff.

A copy of an affidavit showing the facts which do not appear from the papers in the action, and which show that plaintiff should be precluded from giving evidence of the account sued on, should be served with the notice. Evidence of the service of the notice and of a copy of the affidavit should be filed.

BUDD--33

FORM NO. 140.

NOTICE REQUIRING SECURITY FOR COSTS.

[Name of Court.]

You will take notice that the defendant requires security from plaintiff, who is a non-resident of this state, [or is a foreign corporation] for defendant's costs and charges in this action, which may be awarded against such plaintiff. [Date.]

I J,

Attorney for Defendant.

To G H, Esq.,

Attorney for Plaintiff.

Should the non residence of the plaintiff (or that plaintiff is a foreign corporation) not appear on the face of the complaint, such fact should be shown by affidavit, a copy of which should be served with the notice of motion for an order staying proceedings until such security be given.

FORM NO. 141.

NOTICE OF MOTION TO STAY PROCEEDINGS IN THE ACTION UNTIL SUCH SECURITY BE GIVEN.

[Name of Court.]

You will take notice that defendant will move said court at the court room thereof on the

at

o'clock

day of

m., or as soon thereafter as counsel can be heard, for an order staying proceedings in this action until plaintiff give security to defendant for his costs and charges which may be awarded to him in the action. The motion will be made on the complaint in the action, [and on an affidavit, a copy of which is herewith served] and on the ground that plaintiff is a non-resident of this state, [or is a foreign corporation.]

[Date.]

I J.

Attorney for Defendant.

To G H, Esq.,

Attorney for Plaintiff.

If the court be satisfied on the hearing that plaintiff is a non-resident, or a foreign corporation, the order asked for will be made.