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Code of Civil Procedure section 1011 as enacted in 1872

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Enactment of Code of Civil Procedure section 1011 in 1872 was accomplished as part of the original adoption of the California Code of Civil Procedure. (See Exhibit A, #1) The enactment of the Code of Civil Procedure was part of a huge undertaking to codify existing law in California into four different codes: Civil Code, Code of Civil Procedure, Political Code, and Penal Code. (Id.) The effort was generated by the appointment of a Code Commission in the late 1860’s by the Legislature. (Id.) Because so much of this codification effort has little direct impact on understanding section 1011, we include only an overview of the code effort and a listing of documents that are available pertaining to the codification process which do not shed any particular light on these former sections. (See Exhibit A, #1)

As indicated by this overview, some of the California Code of Civil Procedure was simply enacting New York provisions. (See Exhibit A, #1) That was the case with section 1011. (See Exhibit A, #2 and #4) The New York Code of Civil Procedure provision in 1852 was in section 409. (See Exhibit A, #4) The 1852 New York Code indicates it is derived from former section 370 of the 1848 Code. (Id., page 420)