« ՆախորդըՇարունակել »
the district court for such further proceedings as the supreme court by mandate shall direct. Executions may issue from the supreme court, or its judgments may be executed by the district court on mandate for that purpose.
Sec. 281. If the undertaking for costs contain an additional undertaking to pay the judgment if affirmed, and damages, or any new or modified judgment that may be given against the plaintiff in error, then all further proceedings by way of executing the judginent shall forth with cease, until further order of the court of error. In such case, if the judgment be affirmed or modified, or any new judgment be given against the plaintiff in error, damages may be awarded to the defendant in error, not exceeding ten per cent. upon the amount of the judgment, exclusive of interest and costs, if it manifestly appear that the proceeding was without probable cause, and merely for delay; and in case where judgment is rendered against the plaintiff in error, judgment shall also be rendered against the sureties in the undertaking to the extent of their liability, and execution shall issue against them accordingly.
Sec. 285. The undertaking for a writ of error may be in the following form:
District Court, County of
term, 18We promise to pay all costs awarded against A - B on his writ of error in this cause, -- and also the judgment if affirmed, - and the damages, or any new or modified judgment that may be given against him.
Sec. 286. If after the undertaking be filed either party shall die, or, being a single woman, shall marry, the proper persons may, on motion, be made parties, and the causes shall proceed to judgment.
Sec. 287. Any person who may be a party or privy in any judgment, order, or decision, may prosecute a writ of error to reverse the same to the benefit of all parties and privies therein, and no other party or privy sball afterwards prosecute a writ of error SEC. 288. The reversal of a judgment order or decision shall not effect the title to the property sold upon an execution issued upon such judgment order or decision if such property be purchased at the sale by a stranger, but if purchased by the judgment creditor, the plaintiff in error may bring an action for the recovery of the same, and the court may award restitution or render such other judgment as justice shall require.
for the same cause.
SEC. 289. When the supreme court shall be equally divided in opinion, the cause shall stand continued until all the judges are present.
SEC. 290. Whenever on trial of an action at law in the district court it shall be found to turn upon important or doubtful principles of law, the court may direct a special verdict to be found, and in all cases the parties may agree upon the facts, and such agreement in writing, signed by the parties or their attorneys, shall be made part of their record; and all questions of law arising upon special verdicts, agreed cases, motions for new trials, and all others in any manner arising in the district courts in law or equity, may be adjourned into the supreme court for decision, and the supreme court may give judgment or remand the cause, or make any order according to the law and justice of the case.
SEC. 291. When a judgment is reversed against two or more of several persons jointly indebted upon an obligation, those who were not originally served with the summons and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment in the same manner as if they had been originally served with the summons.
SEC. 292. The summons as provided in the last section shall describe the judgment and require the person summoned to show cause why he should not be bound by it, and shall be served in the same manner and returnable within the same time as the original
It shall not be necessary to file a new complaint.
SEC. 293. The summons shall be accompanied by an affidavit of the plaintiff, his agent, representative or attorney, that the judgment, or some part thereof, remains unsatisfied, and shall specify the amount due thereon.
Sec. 294. Upon such summons the defendant may answer upon the return day thereof, denying the judgment or setting up any defence which may have arisen subsequently, or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the statute of limitation.
SEC. 295. If the defendant in his answer deny the judgment, or set up any defence which may have arisen subsequently, the summons, with the affidavit affixed, and the answer, shall constitute the written allegations in the case; if he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons with the affidavit annexed, and the answer, shall constitute such written allegations.
Sec. 296. The issue found may be tried as in other cases, but when the defendant denies in his answer any liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it shall be for the amount remaining unsatisfied on such original judgment, with interest thereon.
CONFESSION OF JUDGMENT. SEC. 297. A judgment of confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner herein prescribed.
Sec. 298. A statement in writing shall be made, signed by the defendant, and verified by his oath, to the following effect: First, It shall authorize the entry of judgment for a specific sum. Second, If it be for money due or to become due, it shall state concisely the fact out of which it arose, and shall show that the sum confessed is due or to become due. Third, If it be for securing the plaintiff against a contingent liability, it shall state çoncisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same. Fourth, That such confession is not made for the purpose of defrauding the creditors of the defendant, but the sum confessed is a bona fide existing debt owing from the defendant to plaintiff, due or to become due at some specified time. The statement shall be filed with the clerk, and the court may thereupon enter judgment for the amount confessed, and the same shall bave the same force and effect as other judgments in such courts; and when the debt for which judgment is confessed is not due, the judgment shall state when the same will become due, and execution shall not issue thereon until such debt shall have become due, unless the defendant otherwise direct.
SUBMITTING A CONTROVERSY WITHOUT ACTION.
Sec. 299. Parties to a question in difference which might be a subject of civil action, may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court that would have jurisdiction of the same 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 thereon as if an action were depending.
Sec. 300. Judgment shall be entered as in other cases, but without costs for any proceeding prior to the trial. The submission and other papers used in the hearing of said cause shall be filed with the clerk of the court where judgment is entered.
SEC. 301. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner subject to appeal.
Persong capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or
for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.
Sec. 303. The submission to arbitration shall be in writing, and may
be to one or more persons. Sec. 304. It may be stipulated in the submission, that it be entered as an order of the district court, for which purpose it shall be filed with the clerk of such court in the district where the
parties or one of them resides. The clerk shall thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered the submission shall not be revoked except by the consent of both parties. The arbitrators' may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission be not made an order of the court, it may be revoked at any time before the award is made.
SEC. 305. Arbitrators shall have power to appoint a time and place for hearing, to adjourn from time to time, to administer oaths to witnesses, to bear the allegations and evidence of the parties, and to make an award thereon.
SEC. 306. All the arbitrators shall meet and act together during the investigation, but when met a majority may determine any question. Before acting, they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matters in controversy, and to make a just award according to their understanding.
Sec. 307. The award shall be in writing, and signed by the parties or a majority of them, and delivered to the parties. When a submission is made an order of the court, the award shall be filed with the clerk, and a note thereof made in his register after the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit showing that notice of filing the award has been served on the adverse party or his attorney at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the clerk in the order book, and shall thereupon have the effect of a judgment.