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TITLE 12.-OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS, AND
GENERAL PROVISIONS.

CHAPTER 1. Submitting a Controversy without Action.

2. Proceedings against Joint Debtors, Heirs, Legatees, Devisees, and Tenants Holding Under a Judg ment Debtor.

3. Confession of a Judgment without Action.

4. Offers of the Defendant to Compromise the Whole or a Part of the Action.

5. Admission or Inspection of Writings.

6. Examination of Parties.

7. Examination of Witnesses.

8. Motions and Orders.

9. Entitling Affidavits.

10. Computation of Time.

11. Notices, and Filing and Service of Papers.

12. Duties of Sheriffs and Coroners.

13. Accountability of Guardians.

14. Powers of Referees.

15. Miscellaneous Provisions.

Controversy, submitted

SEC.

CHAPTER 1.-Submitting a Controversy without Action.

SEC.

3:9. Controversy, how submitted with 591. Judgment, how enforced or apout action.

390. Judgment, how enforced.

pealed from.

SEC. 389. Parties to a question in difference, which might be the without action, subject of a civil action, may, without action, agree upon a case con

how

Judgment.

taining 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 thereon, as if an action were depending.

SEC. 390. Judgment shall be entered in the judgment book, as in other cases, but without costs for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment, shall constitute the judgment-roll.

Judgment, how enforced or ap

SEC. 391. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal pealed from. in like manner.

CHAPTER 2.-Proceedings against Joint Debtors, Heirs, Devisees,
Legatees, and Tenants Holding under a Judgment Debtor.

SEC.

392. Parties, not summoned in action on joint 'contract, may be summoned after judgment.

393. If judgment debtor die, his representative may be summoned.

394 Form of summons.

395. Summons to be accompanied by affidavit of amount due.

SEC.

396. Party summoned may answer and
defend.

397. Subsequent pleadings and prɔ-
ceedings the same as in an ac-
tion.

398. Answer and reply to be verified as
in an action.

Parties not in

summoned after

SEC. 392. When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by pro- summer joint ceeding as provided in Section 159, those who were not originally contract may be summoned to answer the complaint may be summoned to show judgment. cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

debtor die, his

to be summoned.

SEC. 393. In case of the death of a judgment debtor after judg- If a judgment ment, the heirs, devisees or legatees of the judgment debtor, or the representatives tenants of real property owned by him and affected by the judg ment, may, at any time within three years from the time of granting letters testamentary or of administration upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment debtor may be summoned at any time within one. year after their appointment.

Form of sum

SEC. 394. The summons provided in the last two Sections shall be subscribed by the judgment creditor, his representative or attor- mons. ney, shall describe the judgment, and require the person summoned to show cause, within twenty days after the service of the summons; and shall be served in like manner as the original sum

mons.

the

of the amouat

nied by affidavit

SEC. 395. The summons shall be accompanied by an affidavit of To be accomp?person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon.

due.

moned to ай

SEC. 396. Upon such summons any party summoned may answer Party sumwithin the time specified therein, denying the judgment, or setting swer and defend. up any defense thereto, which may have arisen subsequently to such judgment; and, in addition thereto, if the party be proceeded

pleadings and

as in action.

against according to Section 392, he may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced and such defense had been then interposed to such action.

Sub-equent SEC. 397. The party issuing the summons may demur or reply to proceedings same the answer, and the party summoned may demur to the reply; and the issues may be tried and judgment may be given in the same manner as in an action, and enforced by execution; or the application of the property charged to the payment of the judgment may be compelled by attachment, if necessary.

Answer and re

ply to be verified

SEC. 398. The answer and reply shall be verified in the like cases as in an action. and manner, and be subject to the same rules, as the answer and reply in an action.

Of judgment by confession.

Statement in writing and for m thereof.

Judgment and execution.

SEC.

CHAPTER 3.-Confession of Judgment without Action.

99. Judgment may be confessed for
debt due or for contingent liabil-
ity.

SEC.

400 Statement in writing, and form thereof.

401. Judgment and execution.

SEC. 399. A judgment by 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 prescribed in this Chapter.

SEC. 400. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect:

1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor;

2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due;

3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.

SEC. 401. The statement may be filed with a County Clerk, who shall endorse upon it, and enter in the Judgment Book a judgment for the amount confessed, with five dollars costs, together with disbursements. The statement and affidavit, with the judgment endorsed, shall thereupon become the judgment roll. Executions may be issued and enforced thereon, in the same manner as upon judg ments in other cases in such Courts. When the debt for which the judgment is recovered is not all due, or is payable in installments,

and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have endorsed thereon, by the attorney or person issuing the same, a direction to the Sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated, with interest thereon, and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the installments thereafter to become due; and whenever any further installments become due execution may, in like manner, be issued for the collection and enforcement of the same.

CHAPTER 4.-Offer of the Defendant to Compromise the Whole or a
Part of the Action.

SEC.

402. Offer of compromise.

403. Defendant may offer to liquidate damages.

SEC.

404. Effect of acceptance or refusal of
offer.

SEC. 402. The defendant may, at any time before the trial or verdict, 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, and give notice thereof in writing within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the Clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer; and in case the defendant shall set up a counter claim in his answer to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the plaintiff may serve upon the defendant an offer in writing to allow judgment to be taken against him for the amount specified, or to allow said counter claim to the amount specified, with costs. If the defendant accept the offer, and give notice thereof in writing within ten days, he may enter judgment as above for the amount specified, if the offer entitled him to judgment, or the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the defendant fail to recover a more favorable judg

Offer of compromise.

Defendant may

damages conditionally.

ment, or to establish his counter claim for a greater amount than is specified in said offer, he cannot recover costs, but must pay the plaintiff's costs from the time of the offer.

SEC. 403. In an action arising on contract, the defendant may, offer to quidate with his answer, serve upon the plaintiff an offer in writing that, if he fail in his defense, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly.

Effect of acceptance or refusal of offer.

SEC. 404. If the plaintiff do not accept the offer, he shall prove his damages as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred in consequence of any necessary preparation or defense in respect to the question of damages. Such expense shall be ascertained at the trial.

Inspection and

copy of books,

obtained.

CHAPTER 5.-Admission or Inspection of Writings.

SEC. 405. Inspection and copy of books, papers, &c., how obtained.

SEC. 405. Either party may exhibit to the other, or to his attorppers, &c., how ney, at any time before the trial, any paper material to the action, and request an admission in writing of its genuineness. If the adverse party, or his attorney, fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission, unless it appear to the satisfaction of the Court that there were good reasons for the refusal. The Court before which an action is pending, or a Judge or Justice thereof, may, in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permis. sion to take a copy, of any books, papers and documents in his possession or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refused, the Court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

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