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5. By the court, on the application of some of the defendants, when there are others whom the plaintiff fails to prosecute with diligence. All other modes of dismissing an action by non-suit, or otherwise, are abolished.

The dismissal mentioned in the first two subdivisions is made by an entry in the clerk's register, and a notice served on the adverse party. Judgment may thereupon be entered accordingly.

§ 753. In every case, other than those mentioned in the last section, the judgment must be rendered on the merits.

The three last sections are new, and designed as a substitute for a portion of the old practice, not supplanted by the existing code.

§ 754. Though all the defendants have been served with the summons, judgment may be taken against any of them severally, when the plaintiff would be entitled to judgment against such defendants, if the action had been against them alone.

Amended Code, § 136, sub. 3.



§ 755. Judgment may be had, if the defendant fail to answer the complaint, as follows:

1. In an action arising on obligation, for the recovery of money only, the plaintiff may file with the clerk, proof of personal service of the summons, and that no

answer has been received.

The clerk must thereupon

enter judgment for the amount mentioned in the summons, against the defendant, or against one or more of several defendants, in the cases provided for in section 632;

2. In other actions, the plaintiff may, upon the like proof, apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary, to enable the court to give judgment, or to carry the judgment into effect, the court, may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific, real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided;

3. In actions, where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, aud if the defendant be not a resident of the state, must require the plaintiff or his agent to be examined on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before

judgment the plaintiff must give satisfactory security, to abide the order of the court, touching the restitution of any property collected or received under the judgment, in case the defendant or his representatives are admitted to defend the action, and succeed in the defence.

Amended Code, § 246, changed in some respects.



SECTION 756. Issues defined.

757. Issues of law.

758. Issues of fact. Both on same pleadings.

759. Trial defined.

760. Issues of law to be tried by court or referred.

761. Certain issues of fact to be tried by jury, or referred.

762. Other issues tried by court or referred.

763. Issues triable by court to be before one judge.

764. Either party may give notice of trial, and place case on cal


765. Order in which issues must be tried.

766. Either party may bring on trial.

767. When several defendants, separate triels allowed.

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769. Plaintiff to furnish copies of summons and pleadings.

§ 756. Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party

and controverted by the other. They are of two kinds : 1. Of law and,

2. Of fact.

Amended Code, § 248.

§ 757. An issue of law arises,

1. Upon a demurrer to the complaint, or to some part thereof.

Amended Code, § 249.

§ 758. An issue of fact arises,

1. Upon a material allegation in the complaint, controverted by the answer: or,

2. Upon new matter in the answer constituting a counter-claim, controverted by the reply; or, upon other new matter in the answer: or,

3. Upon new matter in the reply: Issues both of law and of fact may arise upon different parts of the pleadings in the same action.

Amended Code, § 250, 251.

§ 759. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

Amended Code, § 252.

§ 760. An issue of law must be tried by the court, unless it be referred, as provided in sections 335 and 336.

Amended Code, §§ 253 and 254.

§ 761. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in section 796, or a reference be ordered, as provided in sections 335 and 336.

Amended Code, § 253.

§ 762. Every other issue of fact must be tried by the court, subject, however, to the right of the parties to consent, or of the court to order, that the whole issue, or any specific question of fact involved therein, be tried by a jury, or be refered, as provided in sections 335 and 336.

Amended Code, § 254.

§ 763. All issues, whether of law or fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the supreme court, must be tried at the circuits, issues of law in the first instance at a circuit, or special term, or before a single judge, as provided in section 49.

Amended Code, § 255.

The provision allowing an issue of law to be tried before a single judge, at any time, is designed to prevent the delay which now sometimes arises from a demurrer, put in for that purpose alone.

§ 764. At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice must furnish the clerk, at least four days before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served; and the clerk must thereupon enter the cause upon the calendar, according to the date of the issue. The issues, once placed upon the calendar of a circuit. or special term, if not tried at the circuit or term for

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