COURTS AND JUDICIAL OFFICERS.

10,227-10,238

10,227. When and how drawn to complete panel. SEC. 227. When there are not competent jurors enough present to form a panel, the court may direct the sheriff or an elisor elected by the court to summon a sufficient number of persons, having the qualification of jurors, to complete the panel, from the body of the county, and not from the bystanders, and the sheriff or elisor must summon the number so ordered, accordingly, and return the names to the court. [Amendment, approved March 24, 1874; Amendments 1873-4, 288; took effect July 1, 1874.(*)

10,228. Compensation of elisor for service on jurors.

SEC. 228. An elisor who shall, by the order of a court of record, summon persons to serve as jurors, shall be entitled to a reasonable compensation for his services, which must be fixed by the court, and paid out of the county treasury. [New section, approved April 3, 1876; Amendments 1875-6, 86; took effect May 1, 1876.

ARTICLE VI.

MANNER OF SUMMONING JURORS FOR COURTS NOT OF RECORD.

10,230. Jurors for police and justices' courts, by whom summoned.

SEC. 230. When jurors are required in any police or justice's court, they must, upon the order of the judge or justice thereof, be summoned by the sheriff, marshal, policeman, or constable of the jurisdiction.

10,231. How summoned.

SEC. 231. Such jurors must be summoned from the persons resident of the city or township, competent to serve as jurors, by notifying them orally that they are so summoned, and of the time and place at which their attendance is required.

10,232. Officer's return.

SEC. 232. The officer summoning such jurors must, at the time fixed in the order for their appearance, return it, with a list of the persons summoned indorsed thereon.

ARTICLE VII.

MANNER OF SUMMONING JURIES OF INQUEST.

10,235. How summoned.

SEC. 235. Juries of inquest must be summoned by the officer before whom the proceedings are had, or any sheriff, policeman, or constable, from the persons resident of the county competent to serve as jurors, by notifying them orally that they are so summoned, and of the time and place at which their attendance is required.

ARTICLE VIII.

OBEDIENCE TO SUMMONS, HOW ENFORCED.

10,238. Obedience to summons, how enforced.

SEC. 238. Any juror summoned who willfully, and without reasonable excuse, fails to attend, may be attached and compelled to attend, and the court may also impose a fine not exceeding one hundred dollars, upon which execution may issue. If the juror was not personally served, the fine must not be imposed until, upon an order to show cause, an opportunity has been offered the juror to be heard.

(e) The original section, instead of "an elisor elected by the court," had the words "other proper officer.'

"

It did not have the words "or elisor" before the word "must."

10,241-10,250

CODE OF CIVIL PROCEDURE.

ARTICLE IX.

OF IMPANELING A GRAND JURY.

10,241. Grand jury, when to be impaneled.

SEC. 241. At the opening of each regular term of the county court (unless otherwise directed by the judge), and as often thereafter as to the judge may seem proper, a grand jury may be impaneled.

10,242. Grand jury, how constituted.

SEC. 242. When, of the jurors summoned and not excused, nineteen are present, they shall constitute the grand jury. If more than nineteen of such persons are present, the clerk must write their names on separate ballots, which he must fold so that the names cannot be seen, place them in a box, and draw out nineteen of them; and the persons whose names are on the ballots so drawn shall constitute the grand jury. If less than nineteen of such persons are present, the panel may be filled as provided in section two hundred and twenty-six. And whenever, of the persons summoned to complete a grand jury, more shall attend than are required, the requisite number shall be obtained by writing the names of those summoned and not excused, on ballots, depositing them in a box, and drawing as above provided. [Amendment, approved April 3, 1876; Amendments 1875–6, 86; took effect May 1, 1876.(a) 10,243. Jury to be impaneled as prescribed in Penal Code.

SEC. 243. Thereafter such proceedings shall be had in impaneling the grand jury as are prescribed in Part II of the Penal Code. [See post, 13,894.]

ARTICLE X.

OF IMPANELING TRIAL JURY IN COURTS OF RECORD.

10,246. Clerk to call list of jurors summoned, etc.

SEC. 246. At the opening of court, on the day trial jurors have been summoned to appear, the clerk must call the names of those summoned, and the court may then hear the excuses of jurors summoned. The clerk must then write the names of the jurors present and not excused, upon separate slips or ballots of paper, and fold such slips so that the names are concealed, and then, in the presence of the court, deposit the slips or ballots in a box, which must be kept sealed until ordered by the court to be opened.

10,247. Jury to be impaneled as prescribed in Part II.

SEC. 247. When thereafter an action is called for trial by the court, such proceedings shall be had in impaneling the trial jury as are prescribed in Part II of this Code. [See post, 10,600.]

ARTICLE XI.

OF IMPANELING A TRIAL JURY IN COURTS NOT OF RECORD.

10,250. Proceedings in forming jury in courts not of record.

SEC. 250. At the time appointed for a jury trial, in police or justices' courts, the list of jurors summoned must be called, and the names of those attending must be written upon separate slips of paper, folded so as to conceal the names, and placed in a box, from which the trial jury must be drawn.

(a) Original section:

SEC. 242. When, of the jurors summoned, not less than thirteen nor more than fifteen attend, they shall constitute the grand jury. If more than fifteen attend,

the clerk must call over the list summoned, and the fifteen first answering shall constitute the grand jury. If less than thirteen attend, the panel may be filled to fifteen as provided in section 226.

алиной

10,251. How impaneled.

SEC. 251. Thereafter, if the action is a criminal one, the jury must be impaneled as provided in the Penal Code. If a civil one, as provided in Part II of this Code. [See post, 14,055 and 10,600.]

ARTICLE XII.

OF IMPANELING JURIES OF INQUEST.

10.254. Mode and manner of impaneling.

SEC. 254. The mode and manner of impaneling juries of inquest are provided for in the provisions of the different codes relating to such inquests.

CHAPTER II.

OF COURT COMMISSIONERS.

10,258. Court commissioners, how appointed.

SEC. 258. The district courts may appoint, for each county of their respective districts, a commissioner to be designated as "court commissioner" of the county. If portions of a single county are assigned to different districts, then a commissioner may be appointed to reside in each portion of the county thus assigned.

10,259. Powers of court commissioners.

SEC. 259. Every such commissioner has power:

1. To hear and determine ex parte motions for orders and writs (except orders or writs of injunction) in the district and county courts of the county for which he is appointed;

2. To take proof and report his conclusions thereon, as to any matter of fact (other than an issue of fact raised in the pleadings), upon which information is required by the court; but any party to the proceedings may except to such report within four days after written notice that the same has been filed, and may argue his exceptions before the court, on giving notice of motion for that purpose;

3. To take and approve bonds and undertakings whenever the same may be required in actions or proceedings in such district and county courts, and to examine the sureties thereon when an exception has been taken to their sufficiency, and to administer oaths and affirmations, and take affidavits and depositions in any action or proceeding in any of the courts of this state, or in any matter or proceeding whatever.

TITLE IV.

Of the Ministerial Officers of the Courts of

Justice.

CHAPTER I. OF MINISTERIAL OFFICERS GENERALLY

II. OF THE SECRETARY AND BAILIFF OF THE SUPREME COURT.

III. OF PHONOGRAPHIC REPORTERS.

CHAPTER I.

OF MINISTERIAL OFFICERS GENERALLY.

10,262. Election, powers and duties, where prescribed.

10,262

.... 10,265

10,269

SEC. 262. The modes of election, powers and duties of the attorney-general, clerk of the supreme court, reporter of the supreme court, clerks, sheriffs, and coroners, are prescribed in the Political and Penal Codes.

10,265-10,271

CODE OF CIVIL PROCEDURE.

CHAPTER II.

OF THE SECRETARY AND BAILIFF OF THE SUPREME COURT.

10,265. Justices may appoint.

SEC. 265. The justices of the supreme court may appoint a secretary and bailiff.

10,266. Tenure and duties.

SEC. 266. The secretary and bailiff hold their offices at the pleasure of the justices, and must perform such duties as may be required of them by the court or any justice thereof.

CHAPTER III.

OF PHONOGRAPHIC REPORTERS.

10,269. Phonographic reporters, appointment and duty.

SEC. 269. The judge of each court of record may appoint a competent shorthand reporter, to hold office during the pleasure of the judge. Such reporter must, at the request of either party, or of the court, in a civil action or proceeding, and on the order of the court, the district attorney, or the counsel for the defendant in a criminal action or proceeding, take down in shorthand all the testimony, the objections made, the rulings of the court, the exceptions taken, and oral instructions given, and if directed by the court, or requested by either party, must, within such reasonable time after the trial of such case as the court may designate, write out the same in plain legible longhand, and verify and file it with the clerk of the court in which the case was tried. [Amendment, approved March 24, 1874; Amendments 1873-4, 288; took effect July 1, 1874.(a)

[Attention may be here called to an act of March 28, 1872; 1871-2, 658, concerning the reporter of the district court of the nineteenth judicial district, and providing that no one person should hold the position of reporter of more than one judicial district in the city and county of San Francisco. It seems to be superseded by the code.

A special act was passed January 27, 1876; 1875-6, 12, concerning the shorthand reporter of the county court of San Joaquin county, and defining his duties in addition to those prescribed in the foregoing section.]

10,270. Report, prima facie a correct statement.

SEC. 270. The report of the official reporter when appointed and acting in accordance with the provisions of sections 272 and 273 of this code, and not otherwise, written out in longhand-writing, and certified as being a correct transcript of the testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings. [Amendment, approved March 30, 1874; Amendments 1873-4, 400; took effect July 1, 1874.(b) 10,271. Compensation of official reporter.

SEC. 271. The official reporter shall receive, as compensation for his services in civil proceedings, not exceeding ten dollars per day for taking notes, and not exceeding twenty cents per hundred words for transcription. The shorthand notes so taken shall, immediately after the cause is submitted, be filed with the

(a) Original section:

SEC. 269. The judge of each judicial district, and each county judge, may appoint a competent shorthand reporter, to hold office during the pleasure of the judge, and who must, at the request of either party, or in the discretion of the court, in a civil action or proceeding, or criminal action or proceeding, on the order of the court, the district attorney, or the counsel for the defendant, take down in shorthand all the testimony, the rulings of the court, the exceptions taken, and oral instructions given, and must, within five days, or such reasonable time after the trial of such case as

clerk; but for the purpose of writing out said notes, the reporter may withdraw the same for a reasonable time. The reporter's fees for taking notes in civil cases shall be paid by the party in whose favor judgment is rendered, and shall be taxed up by the clerk of the court as costs against the party against whom judgment is rendered. In case of the failure of a jury to agree, the plaintiff must pay the reporter's fees, for per diem, and for transcription ordered by plaintiff, which have accrued up to the time of the discharge of the jury. In cases where a transcript has been ordered by the court, the expense thereof must be paid equally by the respective parties to the action, or either of them, in the discretion of the court; and no verdict or judgment can be entered up, except the court shall otherwise order, until the reporter's fees are paid, or a sum equivalent thereto deposited with the clerk of the court. In no case shall a transcript be paid for, unless ordered either by the plaintiff or defendant, or by the court, nor shall the reporter be required, in any civil case, to transcribe his notes until the compensation therefor be tendered him, or deposited in court for that purpose. The party ordering the reporter to transcribe any portion of the testimony or proceedings, shall pay the fees of the reporter therefor. In criminal cases, when the testimony has been taken down upon the order of the court, the compensation of the reporter must be fixed by the court, and paid out of the treasury of the county in which the case is tried, upon the order of the court. [Amendment, approved March 30, 1874; Amendments 1873-4, 400; took effect July 1, 1874.(*)

10,272. Qualifications-Competency, how tested.

SEC. 272. No person shall be appointed to or be retained in the position of official reporter of any court in this state, without being first examined as to his competency by at least three members of the bar practicing in said court, such members to be designated by the judge of said court. The committee so selected shall, upon the request of the judge of said court, examine any person as to his qualification whom said judge may wish to appoint or retain as official reporter, and no person shall be appointed to, or retained in such position, upon whose qualifications said committee shall not have reported favorably. The test of competency before such committee shall be as follows: The party examined must write, in the presence of said committee, at the rate of at least one hundred and forty words per minute for five consecutive minutes, upon matter not previously written by him, and transcribe the same into longhand writing with accuracy. If he pass said test satisfactorily, the committee shall furnish him with a written certificate of that fact, signed by at least a majority of the members of the committee, which certificate shall be filed in the records of the court. [New section, approved March 30, 1874; Amendments 1873–4, 401; took effect July 1, 1874.

10,273. Performance of duties.

SEC. 273. The official reporter of any district court must attend to the duties of his office in person, except when excused for a good and sufficient reason by order of the court, which order shall be entered upon the minutes of the court. Employment in his professional capacity elsewhere shall not be deemed a good

(a) Original section:

SEC. 271. He shall receive, as compensation for his services, not exceeding ten dollars per day for taking notes, and not exceeding twenty cents per folio for transcription, to be paid by the party in whose favor judgment is rendered, and be taxed up by the clerk of the court as costs against the party against whom judgment is rendered. In case of failure of a jury to agree, the plaintiff must pay the reporter's fees accrued to that time. In cases where a transcript may be required by the court, the expense thereof must be paid equally by the respective parties to the action, or either of them, in the discretion of the court; and no verdict or

judgment can be entered up, except the court shall otherwise order, until the reporter's fees are paid, or a sum equivalent thereto deposited with the clerk of the court. In no case shall the transcript be paid for unless specially ordered by either plaintiff or defendant, or by the court; nor shall the reporter be required, in any civil case, to transcribe his notes until the compensation per folio therefor be tendered to him or deposited in court for that purpose. In criminal cases, when the testimony has been taken down by order of the court, the compensation of the reporter must be fixed by the court and paid out of the treasury of the county in which the case is tried, upon the order of the court.