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§ 1402. Judgment of contribution between sureties.

[TITLE.]

Form No. 456.

[Recital of trial, verdict, or findings.]

On motion of G. H., plaintiff's attorney,

It is adjudged, that the plaintiff, A. B., do have and recover of the defendant, C. D., [surety], the sum of . . . dollars, together with the costs and disbursements of this action, taxed at dollars.

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[If the judgment be against two or more sureties, there should be a separate provision directing recovery of the proper share against each surety.]

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§ 1403. Judgment adopting advisory verdict of jury and reversing judgment of county court refusing probate of will.

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[Recite appeal as in preceding forms, and proceed:]

And the court having taken the advisory verdict of a jury upon the issues herein, by which verdict it is found that said alleged will was executed under undue influence, [recite findings of verdict], and the court having adopted said verdict as its findings on the matters so submitted, and having filed its findings of fact and conclusions of law, which are of record:

On motion of G. H., attorney for A. B., proponent of said will, It is adjudged, that the order and judgment of the county court of . . . county refusing probate to said will, dated . . ., 19.., be and the same is hereby reversed, and that the said instrument propounded as the last will and testament of E. F., deceased, be and the same is hereby admitted to probate, and that the papers and records herein be transmitted to said county court to proceed therein as provided by law.

[Direction as to costs.]

By the Court:

R. S., Clerk.

§ 1404. Judgment against receiver in his official capacity.

[TITLE.]

Form No. 458.

[Proceed with recitals of the trial and verdict or finding as in ordinary judgments, and continue:]

Now, therefore, on motion of E. F., attorney for plaintiff, It is adjudged, that out of any funds now in or hereafter to come to his hands, which may, under the direction of the court by which he was appointed, be applicable to that purpose, the defendant R. S., as such receiver of C. D., pay to the plaintiff, A. B., the sum of . . dollars, the damages found against said receiver in this action, together with . . dollars, the costs and disbursements herein, as taxed.

[DATE.]

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Judge.

§ 1405. Judgment in action to enforce lien on logs or timber, after jury trial. ·

[TITLE.]

Form No. 459.

This cause having been tried before the court, Hon. J. K., circuit judge, presiding, and a jury, and the jury having rendered their verdict, which is of record, wherein they find for the plaintiff, and assess his damages at the sum of . . . dollars, which sum is due for labor and services performed as charged in the complaint, and that the same is a lien upon the logs or timber described in the complaint [or, upon a part of the logs or timber described in the complaint], to-wit: upon [describe the part as in the verdict], and the court having directed judgment accordingly:

On motion of E. F., Esq., plaintiff's attorney,

...

It is adjudged, that A. B., the plaintiff, do have and recover of the defendant, C. D., the sum of . . . dollars, damages, together with the sum of . . . dollars and . . . cents, costs and disbursements of this action, and that the same is a lien upon [a part of] the property described in the complaint, to-wit: [Here describe the logs, timber, or lumber, subject to lien.]

By the Court:

R. S., Clerk.

§ 1406. Judgment dismissing appeal from justice court for failure to bring action to trial.

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The return upon the appeal herein having been filed on the .. day of . . ., . . ., 19.., and said appeal not having been brought to a hearing before the end of the second term of this court thereafter: Now, on motion of G. H., attorney for [name respondent], It is adjudged, that said appeal be and is hereby dismissed, and that said [name respondent] do have and recover of [name appel

lant and his sureties on the appeal] the costs and disbursements upon said appeal, taxed at . . . dollars.

§ 1407. Judgment on appeal from justice court after trial de novo.

[TITLE.]

Form No. 461.

This action, being an appeal from a judgment rendered by and before L. M., Esq., a justice of the peace of said county, having been tried before the court and a jury, and a verdict having been duly rendered for the plaintiff, and his damages assessed at the sum of. . . dollars, [or, for the defendant; or, if the trial was by the court, insert: by the court, trial by jury having been waived, and the court having made and filed findings of fact and conclusions of law wherein judgment is ordered for the plaintiff for dollars, damages and costs; or, for the defendant]: Now, on motion of .

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attorney for

It is adjudged, that the plaintiff, A. B., have and recover of C. D., the defendant, and E. F., [surety on appeal-bond], the said sum of . . dollars damages, and his costs and disbursements, taxed at . dollars, making in all the sum of . . . dollars [or, that the defendant, C. D., have judgment dismissing the complaint and recover of A. B., the plaintiff, his costs and disbursements, taxed at .. . . dollars].

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§ 1408. Satisfaction of judgment.

[TITLE.]

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Form No. 462.

For and in consideration of the sum of . . . dollars, to me paid by the defendant in the above-entitled action, full satisfaction is hereby acknowledged of a certain judgment rendered in said . . . court in the said action, on the . . . day of . . ., A. D. 19. ., in favor of . . ., the plaintiff in the said action, and against the said defendant, for the sum of... dollars, with interest. thereon from the . . . day of . . ., A. D., 19.., at the rate of ... per cent per month until paid, together with said plaintiff's costs and disbursements, amounting to the sum of . . . dollars, and recorded in book . . . of judgments, at page And I hereby authorize the clerk of said court to enter satisfaction of record of said judgment in the said action. [DATE.]

E. F., Attorney for Plaintiff.

CHAPTER LI.

JUDGMENT BY DEFAULT.

§ 1409. Default-When authorized.-Upon failure to answer within the time specified in the summons, in an action on contract for money or damages, the clerk, upon application of plaintiff, must enter a default, and immediately thereafter the judgment. In other actions, the clerk must enter the default, and the plaintiff thereafter apply to the court for the relief demanded. The court may, and in case of service of summons by publication must, require proof of the demands made in the complaint, and render judgment for the amount to which plaintiff is entitled, not in excess of the demands made in the complaint.1

In case where the complaint and summons state that the action is one for an accounting, that various sales had been made, and that the quantities and prices were unknown, and defendant fails to make answer in time, the clerk cannot enter a judgment by default, but plaintiff must apply to the court.2 Where an answer is filed which does not controvert the material allegations of the complaint, the plaintiff is entitled to a judgment for failure to answer, although the plaintiff may have filed a reply to the defective answer.3

§ 1410. Default, what admits and cures.-A default admits only the facts alleged in the complaint. So where title as administrator is averred. So of title in ejectment. A default on a complaint containing special counts defectively stated, and also the common counts in assumpsit properly stated, will support a judgment the default being a confession of the indebtedness

1 Cal. Code Civ. Proc., § 585; Alaska Codes, pt. 4, ch. 2, §§ 51-59; Ariz. Civ. Code, pars. 1435-1441; Idaho Rev. Codes, § 4360; Mont. Rev. Codes, § 6719; Nev. Comp. Laws, Me 3247; N. Mex. Comp. Laws, §§ 2685-3068; N. Dak. Code Civ. Proc., §§ 5412-5414; Or. B. & C. Codes, § 185; S. Dak. Code Civ. Proc., §§ 237, 238; Utah Rev. Stats., § 3179;

Wyo. Rev. Stats., §§ 3761-3766;
Wash. Bal. Codes, § 5090.

2 Crossman v. Vivienda Water Co., 136 Cal. 571, 69 Pac. 220.

3 Port v. Parfit, 4 Wash. 369, 30 Pac. 328.

4 Harlan v. Smith, 6 Cal. 173; McGregor v. Shaw, 11 Cal. 47.

5 Curtis v. Herrick, 14 Cal. 117, 73 Am. Dec. 632.

6 Smith v. Billett, 15 Cal. 23.

for the causes and on the accounts alleged in the complaint. A default cures a defective allegation of fact, but not an entire absence of any allegation.

§ 1411. Order of court required.-Where a frivolous demurrer is filed, and no leave is asked to file an answer, it is not error for the court to enter a default and judgment upon overruling the demurrer.9 Where demurrer is overruled, and the defendant fails to file an answer within the time granted him, the clerk is authorized to enter his default, and judgment for the amount specified in the summons.10 But if the notice of the decision required by the statute11 is not given or waived, the time to answer does not run, and judgment by default cannot properly be entered.12 Judgment entered by default before time for answering has expired is voidable.13 Under the code of Colorado, a default for want of answer cannot be entered pending a motion filed by the defendant;14 nor until the expiration of forty days after the completion of constructive service of summons by publication. 15 If an answer is filed raising an issue or issues, and a trial is had, and witnesses are sworn and examined, and the court takes the case into consideration, it cannot then strike the answer of the defendant and enter his default, and render judgment for plaintiff for the amount claimed in the complaint.16 A default judgment is not void for failure to comply with a statute. requiring a statement of the evidence to be filed as part of the record, since it is not enumerated as one of the papers making up the judgment-roll.17 In California, prior to 1895, the affidavit. and order for publication of summons were not a part of the judgment-roll, and were conclusively presumed, in an attack on the judgment, to be sufficient.18 Judgment on default, entered

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8 Hentsch v. Porter, 10 Cal. 555; Barron v. Frink, 30 Cal. 489.

9 Seale v. McLaughlin, 28 Cal. 668. 10 Bailey v. Sloan, 65 Cal. 387, 4 Pac. 349; Wall v. Heald, 95 Cal. 364, 30 Pac. 551; Campbell v. West, 86 Cal. 197, 24 Pac. 1000.

11 Cal. Code Civ. Proc., § 476. 12 Chamberlain v. County of Del Norte, 77 Cal. 150, 19 Pac. 271. See Shearman v. Jorgensen, 106 Cal. 483, 39 Pac. 863.

13 Harnish v. Bramer, 71 Cal. 155, 11 Pac. 888.

14 Atchison etc. R. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 512; Chivington v. Colorado Springs Co., 9 Colo. 597, 14 Pac. 212; Dillon v. Rand, 15 Colo. 372, 25 Pac. 185.

15 O'Rear v. Lazarus, 8 Colo. 608, 9 Pac. 621.

16 Abbott v. Douglass, 28 Cal. 295. 17 Steinfeld v. Montijo, 9 Ariz. 250, 80 Pac. 325.

18 People v. Davis, 143 Cal. 673, 77 Pac. 651.

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