hereby made applicable to all appeals brought up for trial, as in this chap- A. D. 1870. ter provided.


SEC. 384. To every judgment upon an appeal there shall be annexed the return on which it was heard, the notice of appeal, with any offer, roll.' verdict, decision of the Court, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment, which shall be filed with the Clerk of the Court, and shall constitute the judgment-roll.

SEC. 385. If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the Court shall seem just, may be awarded to either party.

Costs, how awarded.

SEC. 386. If the judgment below, or any part thereof, be paid or col- Restitution. lected, and the judgment be afterwards reversed, the Appellate Court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days; and if the order shall be made before the judgment is entered, the amount may be included in the judgment.

Setting off

costs and re

SEC. 387. If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the Appellate Court shall set off the one against covery. the other, and render judgment for the balance.

The costs on

SEC. 388. Costs shall be allowed to the prevailing party, in judgments appeal rendered on appeal, in all cases, with the following exceptions and limitations: In the notice of appeal, the appellant shall state in what particular or particulars he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and Trial Justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal. The appellant may thereupon, and within five days thereafter, file with the Trial Justice a written acceptance of such offer, who shall thereupon make a minute thereof in his docket, and correct such judgment accordingly, and the same, so corrected, shall stand as his judgment, and be enforced accordingly; and any execution which has been issued upon the judgment appealed from shall be amended by the Trial Justice to correspond with the amended judgment; and no undertaking given to stay execution shall be enforced for more than the amount of the corrected judgment. If such offer be not made, and the judgment in the Appellate Court be more favorable to the appellant than the judgment in the Court below, or if such offer be made and not accepted, and the judgment in the Appellate Court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs: Provided, however, That the appellant shall not recover costs unless the judgment appealed from shall be reversed on such appeal, or be made more favorable to him, to the amount of at least ten dollars. If the offer be made, and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs in the Court below. But the appellant shall not recover costs, except as provided in this chapter. The respondent shall be entitled to recover costs where the appellant is not. Whenever costs are awarded to the appellant, he shall be allowed to tax as

A. D. 1870.

part thereof the costs and fees paid to the Trial Justice, on making the appeal, as disbursements, in addition to the costs in the Appellate Court; and when the judgment in the suit before the Court below was against such appellant, he shall further be allowed to tax the costs incurred by him which he would have been entitled to recover in case the judgment below has been rendered in his favor. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the Court shall set off such costs against such debt or damages, and render judgment for the balance. The following fees and costs, and no other, except fees of officers, disbursements and witnesses' fees, shall be allowed, on appeal, to the party entitled to costs, as herein provided, when the new trial is in the Circuit Court: For proceedings before notice of trial, five dollars; for all subsequent proceedings before trial, three dollars; for trial of an issue of law, five dollars; for every trial of an issue of fact, seven dollars; for argument of a motion for a new trial on a case or a bill of exceptions, five dollars; in all cases, to either party, for every term, not exceeding five, at which the appeal is necessarily on the calendar, and is not tried or is not postponed by the Court, five dollars. In other appeals the costs shall be as follows: To the appellant, on reversal, seven dollars; to the respondent, on the affirmance, seven dollars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the Appellate Court may award, not exceeding five dollars. If the appeal be dismissed for want of prosecution, as provided by Section three hundred and eighty-one, no costs shall be allowed to either party. In every appeal, the Court below, before whom the judgment appealed from was rendered, shall receive one dollar for his return. If the judg ment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the Court. If, in the notice of appeal, the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly reversed.



CHAPTER I. Submitting a controversy without action.

II. Proceedings against joint debtors, heirs, legatees, devisees, and tenants holding under a judgment debtor.

III. Confession of a judgment without action.

IV. Offers of the defendant to compromise the whole or a part

of the action.

V. Admission or inspection of writings.

VI. Examination of parties.

VII. Examination of witnesses.

VIII. Motions and orders.

IX. Entitling affidavits.

CHAPTER X. Computation of time.

XI. Notices, and filing and service of papers.
XII. Duties of Sheriffs and Coroners.

XIII. Accountability of Guardians.

XIV. Powers of Referees.

XV. Miscellaneous provisions.

A. D. 1870.



SEC. 389. Controversy, how submitted without action.
390. Judgment, how enforced.

391. Judgment, how enforced or appealed from.

ted without

SEC. 389. Parties to a question in difference, which might be the sub- Controversy, ject of a civil action, may, without action, agree upon a case containing how the facts upon which the controversy depends, and present a submission action. 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 proceeding 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.

SEO. 390. Judgment shall be entered in the judgment-book, as in other Judgment. 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.


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 in like how enforced


or appealed from.



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.

396. Party summoned may answer and defend.

397. Subsequent pleadings and proceedings the same as in an action.
398. Answer and reply to be verified as in an action.

Parties not summoned in action on a joint contract

SEC. 392. When a judgment shall be recovered against one or more of may be sumseveral persons jointly indebted upon a contract, by proceeding as pro- judgment.

moned after

A. D. 1870.

ment debtor

be summoned

vided in Section one hundred and fifty-nine, those who were not originally summoned to answer the complaint 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 summoned.

SEC. 393. In case of the death of a judgment debtor after judgment, If a judg- the heirs, devisees or legatees of the judgment debtor, or the tenants of die, his repre- real property owned by him and affected by the judgment, may, at any sentatives to 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.


SEC. 394. The summons provided in the last two Sections shall be subForm of sum- scribed by the judgment creditor, his representative or attorney, 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 summons.

To be accom

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

amount due.

moned to an



SEC. 396. Upon such summons any party summoned may answer within Party sum- the time specified therein, denying the judgment, or setting up any defence swer and de- thereto which may have arisen subsequently to such judgment; and in addition thereto, if the party be proceeded against according to Section three hundred and ninety-two, he may make any defence 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 defence had been then interposed to such action.

SEC. 397. The party issuing the summons may demur or reply to the Subsequent answer, and the party summoned may demur to the reply; and the issues pleadings and proceedings may be tried and judgment may be given in the same manner as in an same as in ac- 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

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

rified as in an



Of judgment


SEC. 399. Judgment may be confessed for debt due or for contingent


400. Statement in writing, and form thereof.

401. Judgment and execution.

SEC. 399. A judgment by confession may be entered, without action, by confession. 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 by this chapter.

A. D. 1870.

SEC. 400. A statement in writing must be made, signed by the de- Statement in fendant, 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


writing and form thereof.


SEC. 401. The statement may be filed with a County Clerk, who shall Judgment & 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 judgments 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.



SEC. 402. Offer of compromise.

403. Defendant may offer to liquidate damages.

404. Effect of acceptance or refusal of offer.

SEC. 402. The defendant may, at any time before the trial or verdict, Offer of comserve upon the plaintiff an offer in writing to allow judgment to be taken promise. 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 re

« ForrigeFortsett »