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Sec, 5. Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was rendered or made, the application may be made by complaint filed as in other cases, not later than the second term after the discovery ; on which a summons shall issue as on other complaints, requiring the adverse party to appear and answer. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court, upon the evidence produced by the parties. But no such application shall be made more than one year after the final judgment was rendered.

Sec. 6. The motion for a new trial shall be heard so soon as the parties shall have had a reasonable time to prepare therefor.

Sec. 7. The provisions of this title respecting trials by jury apply, so far as they are in their nature applicable, to trials by the court.

CHAPTER 93.

OF JUDGMENTS.

2.

SECTION
1. For and against whom a judgment

may be rendered.
3. When an action may be dismissed with-

SECTION
15. How judgment shall be entered.
16. Judgment to be in favor of the party

out prejudice to a future action. 4. Defendant may proceed on set-off or

counter-claim, after dismissal by plain

tiff. 5. Sale ordered on foreclosure of mortgage. 6. Effect of a judgment for a conveyance,

release, or acquittance. 7. Judgment upon failure to answer. 8. Judgment, with the assent of the creditor,

may be confessed. 9. Statement of the debt to be filed, and

copied in judgment. 10. Defendant must make affidavit. 11. Parties may submit a controversy. 12. Statement, submission, and judgment

form the record. 13. Judgment may be enforced as in other

entitled, notwithstanding the verdict. 17. Judgment may be given for excess of

counter-claim or set-off. 18. Judgment in an action for the recovery

of personal property. 19. Any damages to which plaintiff is enti

tled may be recovered. 20. What relief may be granted to plaintiff

with and without answer. 21. Judgments and orders to be entered on

the journal. 22. What constitutes the record. 23. The clerk to make a copy of record,

when required. 24. How satisfaction of judgment shall be

entered. 25. Judgment docket shall be a record. 26. Proceedings before rendering judgment

against a defendant constructively summoned and who has not appeared.

cases.

14. Offer to confess judgment.

may be

SECTION 1. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves.

Sec. 2. In any action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment

proper. Sec. 3. An action may be dismissed without prejudice to a future action:

1. By the plaintiff, before the final submission of the case to the jury or to the court, where the trial is by the court.

2. By the court, where the plaintiff fails to appear on the trial. 3. By the court, for the want of necessary parties.

4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

In all other cases, upon the trial of the action, the decision shall be upon the merits.

Sec. 4. In any case where a set-off or counter-claim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear.

Sec. 5. In the foreclosure of a mortgage, a sale of the mortgaged property shall, in all cases, be ordered.

Sec. 6. When a judgment shall be rendered for a conveyance, release, or acquittance, and the party against whom judgment shall be rendered does not comply therewith by the time appointed, such judgment shall have the same operation and effect, and be as available, as if the conveyance, release, or acquittance had been executed conformably to such judgment. If the judgment be for a conveyance of real estate, the same shall be duly recorded in the office of the recorder. This section shall apply to decrees rendered, or to be rendered, in suits now pending.

JUDGMENT UPON FAILURE TO ANSWER.

Sec. 7. If the taking of an account, or the proof of a fact, or the assessment of damages, be necessary to enable the court to pronounce

judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof, or assess the damages ; or may, with the like assent, refer the same to a referee or commissioner, or may direct the same to be ascertained or assessed by a jury.

JUDGMENT BY CONFESSION.

Sec. 8. Any person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and with the assent of the creditor or person having such cause of action, confess judgment therefor ; whereupon judgment shall be entered accordingly.

Sec. 9. The debt or cause of action shall be briefly stated in writing, to be filed and copied in the judgment. The confession shall operate as a release of errors.

Sec. 10. Whenever a confession of judgment is made by power of attorney or otherwise, the party confessing, at the time he executes such power of attorney, or confesses judgment, shall make affidavit that the debt is just, and that such confession is not made for the purpose of defrauding his creditors. The affidavit shall be filed.

JUDGMENTS IN AGREED CASES.

Sec. 11. Parties to a question which might be the subject of a civil action, may, without action, agree upon a case constituting the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment as if an action were pending.

Sec. 12. The statement of the case, the submission, and judgment shall constitute the record.

Sec. 13. The judgment may be enforced in the same manner as if it had been rendered in an action, and in like manner shall be with costs, subject to reversal, unless otherwise provided in the submission.

OFFER TO CONFESS JUDGMENT.

Sec. 14. The defendant may, at any time before the trial, serve upon the plaintiff an offer in writing to allow judgment to be taken

against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer in court in the presence of the defendant, or give notice of acceptance in writing within five days and before the trial, judgment shall be entered accordingly. If the offer is not accepted, or notice of the acceptance be not given as above directed, the offer is to be deemed withdrawn, and shall not be given in evidence or commented on before the jury; and if the plaintiff fail to obtain a more favorable judgment, the defendant shall recover from the plaintiff the costs incurred after the offer.

MANNER OF GIVING AND ENTERING JUDGMENT.

Sec. 15. When a trial by jury has been had, judgment must be entered by the clerk in conformity with the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration. Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered.

Sec. 16. Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.

Sec. 17. If a counter-claim or set-off established at the trial exceeds the plaintiff's claim so established, judgment for the defendant shall be given for the excess; or if it appear that the defendant is entitled

affirmative relief, judgment shall be given therefor. Sec. 18. In an action to recover the possession of personal property, judgment for the plaintiff may be had for the delivery of the property, or the value thereof in case a delivery cannot be had, and damages for the detention. Where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property, or its value in case a return cannot be had, and damages for the taking and withholding of the same.

Sec. 19. Whenever damages are recoverable, the plaintiff may claim and recover any damages to which he may be entitled for tho cause of action established.

SEC. 20. The relief granted to the plaintiff, if there be no answer, shall not exceed the relief demanded in the complaint; but in any

to any

other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.

Sec. 21, All judgments and orders shall be entered on the journal of the minutes of the court, and specify clearly the relief granted or order made in the action.

Sec. 22. The record shall consist of the complaint, the process, returns, the pleadings subsequent thereto, reports, verdict, orders, judgment, and all material acts and proceedings of the court.

Sec. 23. Where any party to a cause requires it in writing, the clerk shall enter, into a well-bound book provided for that purpose, a complete copy of the record in such cause, at the cost of the party so requiring it. If neither party require it, no such copy shall be made.

Sec. 24. Satisfaction of a judgment shall be entered by the clerk in the judgment docket, when an execution shall be returned satisfied, or upon an acknowledgment of satisfaction filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor, or within two years after the judgment, by the attorney of record, unless a revocation of his authority be previously filed. Whenever a judgment shall be satisfied in fact, otherwise than upon an execution, it shall be the duty of the party or attorney to give such acknowledgment, and upon motion the court may compel it, or may order the entry of satisfaction to be made without it.

Sec. 25. Such judgment docket shall be a record, and open, during the usual hours of transacting business, to the examination of any person desiring it.

JUDGMENT AGAINST A DEFENDANT CONSTRUCTIVELY SUMMONED.

Sec. 26. Before rendering judgment against a defendant constructively summoned, and who has not appeared, the court may cause the plaintiff to appear personally in court, or before a commissioner, and answer under oath interrogatories concerning the matters in the complaint, or any matters which might be set up in defence thereto, including matters of set-off and counter-claim, and may order the examination to be reduced to writing, and filed with the papers in the action. If, upon the examination, any matters of set-off or counterclaim are disclosed, the same may be adjusted by the judgment.

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