Слике страница
PDF
ePub

in which said probate court is held, or to which it may be attached for judicial purposes. The party appealing shall be known as the appellant, and the adverse party as the respondent.

Appeals un

SEC. 436. All appeals taken by virtue of the provisions of the last section shall be perfected within thirty der last secdays from the rendition of the judgment appealed from, and shall be tried de novo, in said district court.

SEC. 437. The appeal shall be taken by filing with the clerk of the court in which the judgment appealed from is entered, or with the judge of said court, if there be no clerk, a notice stating the appeal from the same, and serving a copy of such notice upon the adverse party or his attorney.

tion.

How appeal

may be taken.

Undertaking

SEC. 438. The party appealing shall file with the judge or clerk of said court, within five days from the filing of the notice of appeal, as provided in the last section, an undertaking in double the amount of the judgment appealed from, or if the judgment be for the recovery of specific personal property, in double the value of on appeal. such property, with at least two sufficient sureties, and conditioned that the party appealing will pay any judgment that may be rendered against him in the district court, as well as all costs that may be awarded against him, and for the prosecution of such appeal with effect.

SEC. 439. If the party appealing be the party in whose favor judgment was rendered, he shall likewise execute and file an undertaking as aforesaid, in a sum equal to double the amount of the costs in the case, conditioned to pay all costs that may be adjudged against him, and for the prosecution of such appeal with effect.

SEC. 440. The undertaking provided for in the two preceding sections, shall be accompanied by the affidavit of the sureties that they are residents of the county, and householders or freeholders thereof, and each worth the amount specified in the undertaking, over and above their debts, liabilities, and property by law exempt from execution, but several sureties may state that they are worth less than the amount mentioned in the undertaking, be

When an undertaking for costs to be given.

Justification under two

of sureties

preceding

chapters.

[blocks in formation]

When party

side such exemptions, if the whole amount equals the amount of two sufficient sureties.

SEC. 441. Within ten days after filing the notice of appeal and undertaking provided for in the preceding sections, and payment of fees therefor, the said judge or clerk of said court shall make a full and comple transcript from the docket of all proceedings had in said action, and transmit the same, together with the complaint, answer, motions, pleadings, and all other papers pertaining to or belonging to said cause, to the clerk of said district court.

all

SEC. 442. If any execution shall have been issued upon a judgment appealed from, the judge or clerk of said court, upon receiving the notice and undertaking as hereinbefore provided, shall issue an order directing the officer having such execution in his possession, or charged with the execution of the same, to stay ceedings thereunder. Such officer, upon the payment of his fees for services rendered on such execution, shall thereupon relinquish all property levied upon by him, and deliver the same, together with all money collected from sales or otherwise, to the judgment debtor.

pro

SEC. 443. If the party appealing to the district court, as provided in this act, shall fail to reduce or enappealing not large the judgment appealed from, ten dollars or more, or revise the same in said district court, he shall not recover any of the costs of appeal.

to recover

costs.

Case on ap

SEC. 444. That all appeals taken by virtue of this act shall be tried in the district court upon the papers in the cause, as if the same had originally been instituted in peal tried de said court, unless said court, upon such terms as may be just, allow other papers to be filed therein, and both appellant and respondent shall have the benefit of objection taken in said probate court.

novo.

Sheriff to

SEC. 445. That the sheriffs of the different counties of this territory are charged with the execution of process execute pro- issued from said probate court, in like manner as provided for in cases in the district court, for which services they shall receive fees as provided by law.

cess of probate court.

TITLE XI.

CHAPTER I.-Proceedings against Joint Debtors.

summons,

not originally served may be summon

SEC. 446. When a judgment is recovered against one or more of several persons jointly indebted upon an obligation, by proceeding as provided in section 75, Defendants those who were not originally served with the and did not appear to the action, may be summoned to ed after judgshow cause why they should not be bound by the judgment in the same manner as though they had been originally served with the summons.

ment.

under last section.

SEC. 447. 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 summons by it, and shall be served in the same manner, and returnable within the same time, as the original summons. It shall not be necessary to file a new complaint.

to

Affidavit accompany

SEC. 448. The summons shall be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment or some part thereof remains summons. unsatisfied, and shall specify the amount due thereon.

SEC. 449. Upon such summons the defendant may answer within the time specified therein, denying the judgment or setting up any defense 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 limitations.

SEC. 450. If the defendant in his answer deny the judgment or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed,

The answer.

and the answer, shall constitute the written allegations Pleadings in in the case; if he deny his liability on the obligation such case. 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.

Issues - how

tried.

Verdict.

Manner in

ment by con

fession may be entered.

SEC. 451. The issues formed may be tried as in other cases; but when the defendant denies in his answer any liability on the obligations upon which the judgment is rendered, if a verdict be found against him, it shall be for the amount remaining unsatisfied on such original judgment, with interest thereon.

CHAPTER II.-Confession of Judgment without Action.

SEC. 452. A judgment by confession may be entered without action, either for money due or to become due,

which judg- or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. Such judgment may be entered in any court having jurisdiction for like amounts.

Statement to

SEC. 453. A statement in writing shall be made and signed by the defendant, and verified by his oath, to the following effect:

First. It shall authorize the entry of judgment for a specified sum.

Second. If it be for money due or to become due, it authorize en- shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due or to become due.

try of.

filed and

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

SEC. 454. The statement shall be filed with the clerk of the court in which the judgment is to be entered, who Statement shall endorse upon it and enter in the judgment book a judgment en- judgment of such court for the amount confessed, with The statement and affidavit with the judgment endorsed shall thereupon become the judgment roll.

tered.

CHAPTER III.-Submitting a Controversy without Action.

SEC. 455. Parties to a question in difference which might be the subject of a 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 which should 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.

Controversy action.

how submitted without

Entry of

SEC. 456. Judgment shall be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a judgment. copy of the judgment, shall constitute the judgment roll. SEC. 457. 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.

CHAPTER IV.— Offer of the Defendant to Compromise the Whole or Part of an Action.

SEC. 458. The defendant may at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer and give notice thereof within five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer.

CHAPTER V.- Of Arbitrations.

How judg

ment entered

or appealed

from.

Offer to compromise.

of controversy to arbitration.

SEC. 459. Persons capable of contracting may submit to arbitration any controversy which might be the sub- submission ject 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.

« ПретходнаНастави »