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1872 CODE OF CIVIL PROCEDURE SECTION 638

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The enactment of Code of Civil Procedure section 638 in 1872 was accomplished as part of the original adoption of the California Code of Civil Procedure. (See Exhibits #1 and #3, pages 557 and 558) 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. (See Exhibit #1) This 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 638, we include an overview of the code effort and a listing of the documents that are available pertaining to the codification. (Id.) As the materials documenting that discussion do not shed any particular light on this section we refrain from forwarding documentation absent a specific request from you.

As indicated by this overview, some of the California Code of Civil Procedure was simply enacting New York provisions. (See Exhibit #1) That was not the case with Code of Civil Procedure section 638. From the notations surviving, the Commissioners indicate that it was derived from uncodified section 182 of the California Civil Practice Act of 1851. (See Exhibit #3, page 557) We discuss the 1851 Civil Practice Act below.