the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defence. Sec. 556. When the decision of a court of inferior jurisdiction in a special proceeding is brought before a court of higher jurisdiction for a review in other way than by appeal, the same costs shall be allowed as in causes on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. Sec. 557. The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court, within two days after the verdict or decision of the court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding; which memorandum shall be verified by the oath of the party, or his attorney, stating that the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. Sec. 558. The clerk shall include in the judgment entered up by him any interest on the verdict or decision of the court, from the time it was rendered or made, and the costs, if the same have been taxed or ascertained, and he shall, within two days after the same shall be taxed or ascertained, if not included in the judgment, insert the same in a blank left in the judgment for that purpose, and shall make a similar insertion of the costs in the copies and docket of the judgment. Sec. 559. When a plaintiff in an action resides out of the territory, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or additional undertaking may be ordered by the court or judge, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new additional undertaking be executed and filed. Sec. 560. Each of the sureties on the undertaking mentioned in the last section shall annex to the same an affidavit that he is a resident and house-holder or freeholder within the county, and is worth the amount specified in the undertaking, over and above all his just debts and liabilities, exclusive of property exempt from execution. Sec. 561. After the lapse of thirty days from the service of notice that security is required, or of an order that new or additional security, upon proof thereof, and that no undertaking, as required, has been filed, the court or judge may order the action to be dismissed. Sec. 562. In any suit hereafter commenced in any of the courts of this territory, the defendant may file a motion asking the court to dismiss the action, or rule the plaintiff to give such security as will be approved by the court, which motion shall be accompanied by the affidavit of the defendant, his agent, or attorney, to the effect that the plaintiff is insolvent, or is not able to pay the costs likely to accrue upon said case, and the court shall dismiss such action unless the plaintiff justifies to the satisfaction of the court by competent witnesses, or give such bond as will be approved by the court, or deposit such amount of money with the clerk as shall be required by the court, or make the affidavit required in the next section. Sec. 563. That any person may commence and prosecute an action in any of the courts in this territory who will file an affidavit, stating that he has a good cause of action, that he is unable to pay the costs in money, or to procure security to secure the same; then it is hereby made the duty of the officers of the courts to issue all writs, and serve the same without demanding or receiving their fees in advance. Sec. 564. Whenever it shall be necessary for any territorial, district, or county officer to commence, prosecute, or defend any suit by attachment, or otherwise, on behalf and in the name of the territory of Montana, under the provisions of any statute of this territory, such officer shall so commence, prosecute, or defend any such suit, without giving bond, nor shall any such officer, when prosecuting any suit on behalf of the territory, or any county thereof be required to pay or deposit any fee or amount before or during the prosecution of any such suit, nor shall any officer so prosecuting or defending be taxed with costs or damage, but such cost or damage, when such officer shall fail to sustain his suit, shall be taxed to the said county or territory, as the case may be. Sec. 565. Each party to a civil action shall be required to pay the fees fixed by law for the performance of any service or duty by any officer of such court at the instance of such party at the time such service is rendered, except in the case herein before mentioned; and no such officer shall be required to perform such service or duty unless the fees fixed therefor shall, on demand, be first paid or tendered. TITLE XV. OF MOTIONS, ORDERS, NOTICES, SERVICE OF PAPERS, AND MISCELLANEOUS PROVISIONS. Sec. 566. Orders and motions defined. Sec. 567. Motions-when to be made. See. 568. Notice of motion-at what time be given. Sec. 571. Service of notice of motion-when personal or otherwise. Sec. 572. Service may be made by mail when the persons reside in different places. Sec. 573. Manner of service by mail. Sec. 574. Appearance-notice after appearance. Sec. 575. Service on non-residents; where a party has an attorney, service shall be on such attorney. Sec. 576. The clerk shall keep a register of actions. Sec. 577. Two of three referees, etc., may do any act. Sec. 578. Computation of time in this act. The time within which any act is to be done may be extended. Sec. 579. Papers without title of the action, or with defective title, may be valid. Sec. 580. Limitation of actions which have arisen in another territory. Section 566. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion. Sec. 567. Motions shall be made in the county in which the action is brought, or in an adjoining county in the same district. Written notice of a motion, as provided in this act, shall only be required in case of a motion made out of term time. Notice of a motion made in term time, except those made during the progress of a trial, shall be entered in a book to be kept for that purpose, and called the "Motion Book," and such motion shall be for hearing after twenty-four hours from the time such notice is entered in the motion book. Sec. 568. When a written notice of a motion is necessary, it shall be given, if the court be held in the same district with both parties, five days before the time appointed for the hearing, other wise, ten days; but the court or judge may prescribe a shorter time. Sec. 569. When a notice of motion is given, or an order to show cause is made returnable before a judge out of the court, and at the time fixed for the motion, or on the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge before whom it might originally have been brought. Sec. 570. Written notices and other papers when required to be served on the party or attorney, shall be served in the manner prescribed in the next three sections, when not otherwise provided; but nothing in this title shall be applicable to original or final process, or any proceeding to bring a party into contempt. Sec. 571. The service may be personal by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: First. If upon an attorney it may be made during his absence from his office by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open, so as to admit of such service, then by leaving them at the attorney's residence, with some person of suitable age and discretion; and if his residence be not known, then by putting the same enclosed in an envelope into the post office, directed to such attorney. Second. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some some person of suitable age and discretion; and if his residence be not known, by putting the same, enclosed in an envelope, into the post office, directed to such party. Sec. 572. Service by mail may be made, when the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. Sec. 573. In case of service by mail, the notice or other paper shall be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. And in such case the time of service shall be increased one day for every twenty-five miles distance between the place of deposit and the place of address: Provided, That service in any case shall be deemed complete at the end of forty days from the date of its deposit in the post office. Sec. 574. A defendant shall be deemed to appear in action when he answers, demurs, or gives the plaintiff a written notice of his appearance, or when an attorney gives notice of an appearance for him. After appearance, a defendant, or his attorney, shall be entitled to notice of all subsequent proceedings of which notice is required to be given. But when a defendant has not appeared, service of notice or papers need not be made upon him, unless he be imprisoned for want of bail. Sec. 575. When a plaintiff or a defendant who has appeared, resides out of the territory and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where the party has an attorney in the action or proceeding, the service of papers when required shall be upon the attorney instead of the party, except of subpoenas, writs, and other process, issued in the suit, and of papers to bring him into contempt. Sec. 576. The clerk shall keep among the records of the court a register of actions; he shall enter therein the title of the action, with brief notes under it from time to time of all papers filed and proceedings had therein. Sec. 577. When there are three referees or three arbitrators, all shall meet; but two of them may do any act which might be done by all. Sec. 578. The time within which an act is to be done, as provided in this act, shall be computed by excluding the first day and including the last; if the last day be Sunday it shall be excluded. When the act to be done relates to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the service of notices other than appeal, or the preparation of statement, or of bills of exceptions, or of amendments thereto, the time allowed by this act may be extended upon good cause shown by the court in which the action is pending, or the judge thereof, or, in the absence of such judge from the county in which the action is pending, by the probate judge; but such extension shall not exceed thirty days beyond the time prescribed by this act, without the consent of the adverse party. Sec. 579. An affidavit, notice, or other paper, without the title of the action or proceeding in which it is made, or with a defective title, shall be as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding. Sec. 580. When a cause of action has arisen in another state or territory or in a foreign country, and by the laws thereof an action thereon cannot be there maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this territory except in favor of a citizen thereof, who has held the cause of action from the time that it accrued. 20 |