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For what caug.
New Trials. § 381. A new trial is a re-examination in the same court
of an issue of fact after a verdict hy a jury or a decision es a new trial by the court. The former verdict or decision may be vacamay be granted.
ted and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party :
1. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.
2. Misconduct of the jury or prevailing party.
3. Accident or surprise which ordinary prudence could not have guarded against.
4. Excessive damages, appearing to have been given under the influence of passion or prejudice.
5. Error in the assessment of the amount of recorery, whether too large or too small, where the action is upon a contract or for the injury or detention of property
6. That the verdiet or decision is not sustained by sufficient evidence, or is contrary to law.
7. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
8. Error of law occurring at the trial, and excepted to by the party making the application.
$ 382. A new trial shall not be granted on account of For what caus: the smallness of damages in an action for an injury to the
not be person or reputation, nor in any other action where the granted. damages shall equal the actual pecuniary injury sus
§ 383. The application for a new trial must be made at Application the term the verdict or decision is rendered, and, except for
the cause mentioned in subdivision seven of section three same terenul hundred and eighty-one, shall be within three days after
the verdict or decision was rendered, unless' unavoidably prevented.
§ 384. The application must be by motion upon written Grounds must grounds filed at the time of making the motion. The sustained by antite grounds mentioned in the second, third, and seventh subdi
vision of section three hundred and eighty-one, must be sustained by affidavits showing their truth, and may be controverted by affidavits.
$385. Where grounds for a new trial are discovered afApplications ter the term at which the verdict or decision was rendered,
the application may be made by a petition filed with the ter expiration or clerk not later than the second term after the discovery, on
which a summons shall issue, as on other petitions, requi
es a new trial shall
for new trial must be made at
be , &
trials may be made af
Plaintiff inay recover
Nockets to bo
& motion dock. ets.
ring the adverse party to appear and answer it, on or be- 1851. fore the first day of the next term. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court. The evidence may be either by depositions, or by witnesses examined in court. But no such application
. shall be made more than three years after the final judgment was rendered.
General provisions. $ 386. Wherever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he damages as he is may be entitled for the cause of action established. $ 387. The provisions of this title respecting trials by concerning jury
Provision jury, apply, so far as they are in their nature applicable, wials applicable
to by court to trials by the court.
Time of trial. ộ 388. The clerk shall keep three separate dockets, which shall be called the common docket," the “equity docket,” coinmon, equity,
kept by clerkand the "motion docket."
$ 389. On the common docket shall be entered all actions prosecuted by ordinary proceedings, in the order in which Common docket they were brought.
Ø 390. The common docket shall be made out for each term of the court; and the actions shall be set for particu
out at each term. lar days, and so arranged by the clerk that the cases set for each day shall be tried, as nearly as may be, on that day.
§ 391. The trial of any issue of fact or assessment of Causes not to be damages by a jury in any case, shall be on or after the day set on the day which it is set on the docket.
ģ 392. On the equity docket shall be entered all actions prosecuted by equitable proceedings, in the order in which Equity docket. they were brought.
§ $ 393. On the motion docket may be entered any motion Motion docket. relating to proceedings in the court.
§ 394. The entry on all the dockets shall give the name of the plaintiff and defendant, or if there are more than ties and attor. one, then, of the first named in the pleadings, with the ed on dockets. words "and others” added thereto, and the names of the attorneys.
$ 395. The entry on the common docket shall also show whether or not the summons has been fully served in due to be made on time for trial, and whether or not the issues have been formed.
$ 396. The entry on the motion docket shall show the Entries to be date of the entry and the object of the motion. $ 397. The first hour of each day of the term shall be
To be mado
Names of par
neys to be enter.
docket ted to motions.
First lour of
made on motion docket.
1851. devoted to hearing motions, in which the court shall first euch day devo call the motion docket, and then, upon the attorneys pres
ent, for motions.
§ 398. If the hour is not consumed in motions, the court I not con. may proceed, during the remainder thereof, to call the equi
sumed, dochet called.
be ty docket.
ter motion hour.
set for the day to be called.
and decide is. sues of law OU third day.
§ 399. At the expiration of the motion hour, the court, Common dock except on the third day of the term, shall proceed to the et to be called a call of the common docket and the trial of the issues until
the call is completed, and then to the call of the equity docket.
$ 400. On each day of the term, the court shall, immediAll cases on ately after the hearing of motions, call all the cases on the con mon cocket common docket set for that day in which the summons has
been served in due time, as provided in section one hundred and sixty-one, and in which no issue of fact has been formed; and, upon failure to defend, may render judgment; and at the same time may hear and determine all issues of law in such actions, and render judgment, or give further time for hearing and deciding them.
§ 401. On the third day of each term, the court shall Cases on equi. call all cases on the equity docket in which the summuns ty docket to be has been served as provided in section one hundred and
sixty-three; and, upon failure to defend, may give judgment.
§ 402. On the third day, the court may hear and decide Court may hear all issues of law in the actions as they are called, and ren
der judgment, or give further time for hearing or deciding them.
§ 403. The entry of a motion on the motion docket, shall Entry on motion docket is be considered as making the motion. making the mo.
$ 404. Actions by ordinary proceedings shall stand for When an action
trial at the first term after process has been served on the by ordinary pro defendant as specified in section one hundred and sixty
one, An action upon contract, wherein the summons has been served in due time as provided in section one hundred and sixty-one upon part only of the defendants, shall stand for trial at the first term as to those so summoned, and may be continued as to the others for further proceedings. In other actions by ordinary proceedings, the plaintiff can only demand a trial at any term as to part of the defendants, upon his discontinuing his action on the first day of such term as to the others.
§ 405. Actions prosecuted by equitable proceedings shall
stand for trial at any term, where the pleadings have been, by cquitable pro or, by the provisions of sections one hundred and sixtyceedings stands
three, one hundred and sixty-four, and one hundred and sixty-five, should have been completed ninety days before the commencement of such term. But where they have not been so completed, though they should have been by those sections, the party in default as to time, shall not be entitled to demand a trial.
When an action
Pl-intiff may dismiss a. to part of defend.
§ 406. Where interrogatories have been annexed to a 1851. pleading in an action by equitable proceedings, the party interrogated shall not be entitled to demand a trial, unless rogatories have he has answered the interrogatories either within twenty days after they were filed, or twenty days before the term.
§ 407. The plaintiff shall be entitled to a trial in actions When plaintiff by equitable proceedings, at the first term after the sum- bytequitable pro mons has been served on all the defendants as provided in ceedings. section one hundred and sixty-three, where no issue of fact is made by the pleadings, or where the plaintiff consents that the statements of the answer may be taken as true.
Ø 408. Where the summons in an action by equitable proceedings, has been served in due time on part only of the defendants, the plaintiff may dismiss his action as to those ants, in equita
ble proceedinge. not summoned, and proceed to trial as to the others, in all cases where he could have maintained his action against them without joining those not summoned.
2. Judgment upon failure to answer,
Judgment in general. $ 409. A judgment is the final determination of the rights Judgment. of the parties in an action.
§ 410. Judgment may be given for or against one or more May be given of several plaintiff's, and for or against one or more of sev
some of parties. eral defendants. $ 411. In an action against several defendants, the court
May be render.
ed against part may,.in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, as to others. whenever a several judgment is proper.
$ 412. An action may be dismissed, without prejudice to An action may a future action
1. By the plaintiff, before the final submission of the dice as to a fu. case to the jury, or to the court where the trial is by the court.
2. By the court, where the plaintiff fails to appear on the trial.
3. By the court, for the want of necessary parties.
4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.
5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases, upon the trial of the action, the decision must be upon the merits.
be dismissed without preju.
Defendant may proceeed
missed his tion.
be given in mort. gage cases once.
1851. § 413. In any case where a set-off or counter-claim has
been presented, the defendant shall have the right of pro
with ceeding to the trial of his claim, although the plaintiff may plaintif has dis have dismissed his action or failed to appear.
$ 414. Though all the defendants have been summoned, There may be judgment may be rendered against any of them severally, juds where the plaintiff would be entitled to judgments against
such defendants it the action had been against them alone.
§ 415. It shall not be necessary, in any action upon a Final judg. mortgage or lien, to enter an interlocutory judgment or
give time for the payment of money, or for doing any other at act; but final judgment may, in such cases, be given in the first instance.
§ 416. In the foreclosure of a mortgage, a sale of the a sale of morte mortgaged property shall, in all cases, be ordered. gaged property. $ 417. Sales of personal property or slaves made by order
of court, shall be on a credit of three months ; sales of real mortgaged property, on a credit of not less than three nor more than property. twelve months, or on installments equivalent to not more
than twelve months' credit on the whole, to be determined by the court. In all sales on credit, the purchaser shall execute bond, with good surety, to be approved by the person making the sale, which bond shall have the force of a judgment; and in sales of real property, a lien shall be retained on the property for its price.
There must he
Terms on sale of
Damages may he assessed by court or jury on judgment failing to an. Bwer.
Judgment upon failure to answer. 418. If the taking of an account, or the proof of a fact, or the assessment of damages is necessary to enable the
court to pronounce judgment upon a failure to answer, or for after a decision of an issue of law, the court may take the
account, hear the proof, and, in actions founded on contract, assess the damages, or may refer the same to a commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury is ordered, it shall be on or after the day on which the action is set for trial.
appear and cou
Judgment by confession. § 419. Any person indebted, or against whom a cause of Defendant may action exists, may personally appear in a court of compefess judgment.
tent jurisdiction, and, with the assent of the creditor or person having such cause of action, confess judgment therefor; whereupon, judgment shall be entered accordingly.
§ 420. The debt or cause of action shall be briefly stated Debt or cause in the judgment, or in a writing to be filed as pleadings in
other actions. briefly stated.
9421. Such judgment shall authorize the same proceedjudgment Suchesscent ings for its enforcement as judgments rendered in actions
of action to be