for which they were made was held sufficient;40 so a general statement that indebtedness was in respect of sale of interest in partnership property.41 So as to facts as to numerous sales, conducing to a balance, for which judgment is confessed.42 So as to general statement as to notes indorsed for accommodation of confessor.43

§ 1470. Void judgments.-A judgment confessed for the purpose of hindering, delaying, or defrauding creditors is void as to such creditors. A judgment by confession is void, unless the statement authorizing its entry is signed by the person against whom the judgment is rendered.45 The authority given by statute for entering judgment by confession must be strictly pursued.46

§ 1471. Judgment by confession-Miscellaneous.-Under section 416 of the Washington Code of Procedure, in an action upon. a contract against copartners, when one of the partners confesses judgment without the consent of the others, judgment is authorized against all the partners, to be enforced against the partnership property, and against the separate property of the partner making the confession. 47 Strangers to a judgment by confession are not concluded by its date nor by its recitals. 48 The enforcement of a judgment entered by confession, without a substantial compliance with the statute authorizing such entry, may be enjoined at the suit of a third party prejudiced thereby.49 No Colorado statute authorizes a clerk to enter a judgment in vacation by confession in any cause against a county, and a

40 Frost v. Koon, 30 N. Y. 428. 41 Thompson v. Van Vechten, 27 N. Y. 568. Confession sustained stating facts sufficient to sustain liability by necessary implication. Read v. French, 28 N. Y. 285. Confession specifying consideration of notes in general terms upheld. Ely v. Cooke, 28 N. Y. 365; Kellogg v. Cowing, 33 N. Y. 408.

42 Neusbaum v. Keim, 24 N. Y. 325. See, also, Curtis v. Corbit, 25 How. Pr. 58.

43 Hopkins v. Nelson, 24 N. Y. 518.

44 Ryan v. Daly, 6 Cal. 238; Scales . Scott, 13 Cal. 76.

45 Reynolds v. Lincoln, 71 Cal. 183, 9 Pac. 176, 12 Pac. 449.

46 Chapin v. Thompson, 20 Cal. 681; Richards v. McMillan, 6 Cal. 419, 65 Am. Dec. 521; Cordier v. Schloss, 18 Cal. 576; Bacon v. Raybould, 4 Utah, 357, 10 Pac. 481, 11 Pac. 510; Schuster v. Rader, 13 Colo. 329, 22 Pac. 505.

47 Bank of Shelton v. Willey, 7 Wash. 535, 35 Pac. 411. Compare Richardson v. Fuller, 2 Or. 179.

48 Schuster v. Rader, 13 Colo. 329, 22 Pac. 505.

49 Id. See Ling v. King, 91 Ill. 571; Brown v. Hathaway, 10 Minn. 303.

judgment so entered against a county will not furnish a basis for the issue of bonds.50

§ 1472. Judgment by consent.-A judgment by consent, in an action in which the court has jurisdiction of the subjectmatter and of the parties, will bind them and their privies as effectually as if it had been entered after a trial of the issues.51 Judgment entered on the stipulation of the parties is in fact a judgment by consent.52 Such a stipulation is of no avail if entered after expiration of three years.53 Appeal will not lie from a judgment by consent.54 But it will not be presumed in support of a judgment that it was given by consent. This must be shown affirmatively.55 If the agreement of the parties to obtain a judgment settling conflicting claims to the use of water does not express the intention of the parties, the remedy is by an action to correct the agreement, as the court cannot frame a decree differing from the agreement.56

§ 1473. Statement and confession of judgment.

[TITLE.]

Form No. 469.

I, C. D., defendant in the above-entitled action, do hereby confess judgment therein, in favor of A. B., the plaintiff in the said action, for the sum of . . . dollars, and authorize judgment to be rendered therefor against me, with legal interest thereon from this date.

This confession of judgment is for a debt justly due and owing to the said plaintiff, arising upon the following facts, to-wit: [State facts specifically, with circumstances, date, place, etc.] [SIGNATURE.]

C. D., being duly sworn, deposes and says as follows:

I am the person who signed the above statement, and I am

50 Abbott v. Board of Commrs., 18 Colo. 6, 30 Pac. 1031.

51 Partridge v. Shepard, 71 Cal. 470, 12 Pac. 480. See McCreery v. Fuller, 63 Cal. 30.

52 Corby v. Abbott, 28 Mont. 523, 73 Pac. 120.

53 Grant v. McArthur, 137 Cal. 270, 70 Pac. 88.

54 Corby v. Abbott, 28 Mont. 523, 73 Pac. 120.

55 San Francisco Sav. Union Myers, 76 Cal. 624, 18 Pac. 686.

V.

56 People's Ditch Co. v. Fresno etc. Irr. Co., 152 Cal. 87, 92 Pac. 77; Andrews v. Moore, 14 Idaho, 465, 94 Pac. 579.

indebted to the said A. B. in the sum of

dollars in said statement mentioned; and the facts stated in the above confession and statement are true.

[JURAT.]

[SIGNATURE.]

§ 1474. Judgment by confession in open court.

[TITLE.]

Form No. 470.

On this... day of . . 19 come the above-named parties in open court, and the said defendant, C. D., says that he is justly indebted to the said plaintiff in the sum of . . . dollars, upon a certain promissory note executed by said defendant to the plaintiff for borrowed money, of which the following is a copy: [Insert copy of note, or statement showing the indebtedness.]

And the said plaintiff being present in court and consenting thereto, the said defendant, C. D., confesses judgment for said demand, and asks that judgment be rendered against him therefor in favor of the plaintiff for said sum of ... dollars:

It is adjudged, that the plaintiff, A. B., do have and recover of the defendant, C. D., the sum of . . . dollars, with costs, taxed at . . . dollars, making in all the sum of . . . dollars.

[In Oklahoma, if an attorney confesses judgment, he must produce the warrant and file the same or a copy, in which case the above form should be waived by reciting the fact of confession.]

CHAPTER LIV.

JUDGMENT ON DISMISSAL AND NONSUIT.

§ 1475. Dismissal of action-Nonsuit.-An action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself, at any time before trial, upon the payment of his costs, if a counterclaim has not been made, or affirmative relief sought by the cross-complaint or answer of defendant, or if the cross-complaint has been stricken from the files by order of the court.1 Where the landowner files a crosscomplaint against his co-defendant, the mortgagee, disputing the validity of his foreclosure, such is not a counterclaim, it being a claim between two defendants and not between plaintiff and defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon. The argument and submission of a motion for judgment on the pleadings and plaintiff's failure to reply to defendant's answer is a "trial," under the terms of this section.3 2. By either party, upon the written consent of the other; 3. By the court, when either party fails to appear on the trial, and the other appears and asks for the dismissal; 4. By the court, when upon the trial, and before the final submission of the case, the plaintiff abandons it; 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. A party cannot be sent out of court merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of court only when upon his facts he is entitled to no relief, either at law or in equity. If, then, upon the facts. stated in his complaint, the plaintiff would have been entitled to

1 Alpers v. Bliss, 145 Cal. 565, 79 Pac. 171.

2 Long v. McGowan, 16 Colo. App. 540, 66 Pac. 1076.

P. P. F. Vol. I-60

3 Mont. Rev. Codes, § 6714; State v. District Court, 32 Mont. 37, 79 Pac. 546.

4 Cal. Code Civ. Proc., § 581.

relief in equity under the old system of practice, the action cannot be dismissed.5

§ 1476. A dismissal of an action by a stipulation signed by both parties, which provides that each party shall pay his own costs, is such a determination of the action in favor of the defendant as will enable him to maintain an action for malicious prosecution. Allowing an action to rest without service of summons for two years and eight months after the summons is issued is such a want of diligence as to justify the court in dismissing the action. Provision is now made for the dismissal of an action unless summons shall have been issued within one year, or if the summons be not served and return thereon made within three years after the commencement of the action.s

§ 1477. Dismissal by consent.-After an action has been tried and submitted, the plaintiff has no right to dismiss it, nor has the court any authority to enter an order of dismissal without the consent of the defendant. Where a defendant, on mortgage foreclosure, seeks by cross-complaint to establish his own mortgage as prior to plaintiff's, he cannot dismiss his cross-complaint without plaintiff's consent.10

1478. Dismissal by the court.-The court has authority to grant a nonsuit only in cases specified in section 581 of the Code of Civil Procedure.11 When an action is impertinent, vexatious, and contemptuous because of having been prohibited by a former decree, it should be dismissed.12 Courts should, of their own motion, dismiss a case based upon a consideration which contravenes public policy, whether the objection or not.13 But the court

5 Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; Peters v. Foss, 20 Cal. 587; People v. Loewy, 29 Cal. 264.

6 Kinsey v. Wallace, 36 Cal. 463.' 7 Grigsby v. Napa County, 36 Cal. 585, 95 Am. Dec. 213.

8 Cal. Code Civ. Proc., § 581a.

9 Heinlin v. Castro, 22 Cal. 100. As to dismissal by consent, see Stoutenborough v. Board of Education, 104 Cal. 664, 38 Pac. 449.

10 Rogers v. Parker, 136 Cal. 313, 68 Pac. 975.

parties to the suit take the cannot arbitrarily dismiss an

11 Hanna v. De Garmo, 140 Cal. 172, 73 Pac. 830.

12 Kirby v. Pease, 33 Wash. 511, 74 Pac. 665.

13 Valentine v. Stewart, 15 Cal. 387. As to the power of court in compulsory nonsuits, see Ringgold v. Haven, 1 Cal. 108; Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303; Silsty v. Foote, 14 How. 218, 14 L. Ed. 394; Castle v. Bullard, 23 How. 172, 16 L. Ed. 424; Folger v. The Robert G. Shaw, 2 Woodb. & M. 531, Fed.