1. The evidence of the place of service, if insufficient to authorize the rendition of the judgment, should have been taken advantage of, either upon appeal or on motion to vacate the judgment.-Pico v. Sunol, 6 Cal., 294.

35. From the time of the service of the summons and copy of complaint in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.

r. What constitutes an appearance? See sec. 523.

2.

An appearance by attorney amounts to a waiver of service.-Suydam v. Pitcher, 4 Cal., 280; Mahaney v. Penman, 4 Duer, 603.

3. A voluntary and general appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in summons and previous proceedings.Gardner v. Teller, 2 How. Pr., 241; Hill v. Smith, ib., 242; Mulkins v. Clark, 3 ib., 27; Georgia Lumber Co. v. Strong, ib., 246; Dix v. Palmer, 5 ib., 233, 3 Code R., 214; Flynn v. Hudson R. R. R. Co., 6 How. Pr., 308; Webb v. Mott, ib., 439; Hewitt v. Howell, 8 ib., 346; Carpenter v. New York & New Haven R. R. Co., 11 ib., 481; Hyde v. Patterson, 1 Abbott, 248.

TITLE IV.

OF THE PLEADINGS IN CIVIL ACTIONS.

FOR INTERVENTION, SEE SECTIONS 659, ET. SEQ.

36. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. 1. Pleadings must be strongly taken against the pleader.-Chipman v. Emeric, 5 Cal., 49.

2.

The mode of taking advantage of defective pleadings discussed.-White v. Joy, 3 Kern., 83.

37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act.

1. All rules of pleading that are merely technical, are abolished by this act.-Cobb v. West, 4 Duer, 44.

38. (1855.) The only pleading on the part of the plaintiff shall be

the complaint, or demurrer to the defendant's answer, and the only pleading on the part of the defendant shall be the demurrer, or the answer. The demurrer or answer of the defendant shall be filed with the clerk of the court, and a copy thereof served upon the plaintiff or his attorney: Provided, the plaintiff or his attorney reside within the county where the action is pending.

39. The complaint shall contain:

1st. The title of the action, specifying the name of the court and the name of the county in which the action is brought, and the name of the parties to the action, plaintiff and defendant.

2d. A statement of the facts constituting the cause of action, in ordinary and concise language.

3d. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated.

1. 1st. The statement of the place of trial (and name of the court) in the complaint is essential for many purposes of the action.—Merrill v. Grinnell, 10 How. Pr., 31.

2. 2d. Where, on appeal, the complaint is so radically defective as not to authorize the judgment of the court below, a new trial may be granted, with leave to the plaintiff to amend his complaint, on such terms as the court below may deem just.-Sterling v. Hanson, 1 Cal., 378.

3. One partner cannot sue another for a partnership transaction, without praying for an account and a settlement of the partnership transactions.-Russell v. Ford, 2 Cal., 86; Buckley v. Carlisle, ib., 420; Stone v. Fouse, 3 Cal., 292; Nugent v. Locke, 4 Cal., 318; Barnstead v. Empire Mining Co., 5 Cal., 299.

4. If the complainant do not show a good cause of action, the judgment will be reversed though no objection be taken below.-Russell v. Ford, 2 Cal., 86.

5. The statute requiring the complaint to contain a statement of the facts constituting a cause of action in ordinary and concise language, is only declaratory of the common law. Godwin v. Stebbins, 2 Cal., 103.

6. Although the prayer of a bill be inartificially framed, the court will, under the general prayer for relief, disregard mistakes, and grant such relief as will conform to the bill.-Truebody v. Jacobson, 2 Cal., 269.

7. Where a bill disclosed that the same subject matter had been litigated between the same parties in a prior suit, and that in said suit, the plaintiff in this suit, had set up the same equity which he claims in this bill, the bill was ordered to be dismissed.

8. The allegations of ignorance in making the necessary averments, or of insufficient conduct, in the prosecution of a former suit, does not constitute a ground for relief in chancery.-Barnett v. Kilburn, 3 Cal., 327.

9. Where the complaint alleged that in September, 1849, plaintiff settled on a tract of land," The same being public land of the United States." That subsequently H., a foreigner, built a house and occupied a portion of the tract, and now that H.'s executor is offering the same for sale, and the plaintiff prays an injunction, and damages

SEC. 3. Section thirty-eight of said act is amended so as to read as follows:

Sec. 38. The only pleadings on the part of the plaintiff shall be the complant, demurrer, or replication to the defendant's answer; and the only pleadings on the part of the defendant shall be a demurrer to the complaint, or a demurrer to the replication, or an answer to the complaint. The demurrer or answer of the defendant, and the demurrer or replication of the plaintiff, shall be filed with the Clerk, and a copy thereof served on the adverse party or his Attorney.