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Judgment by Confession.
SEC. 62. That any justice of the peace in this territory judgment. Stay may enter a judgment by confession, when the debts or dam- of execution. ages shall not exceed one hundred dollars, with such stay of execution as may be agreed on by the parties interested in such judgment.
SEC. 63. No confession shall be taken or judgment rendered thereon, unless the following requisites be complied with.
First, The defendant must personally appear before the justice.
Second, The confession shall be in writing, signed by the defendant and verified by his oath, and filed with the justice.
Third, If it be for money due or to become due, the confession must state concisely the facts out of which it arose, and must show that the sum confessed therefor is honestly due or to become due. If it is for the purpose of securing a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.
Requisites to confession.
SEC. 64. The statement and affidavit must be filed with the justice of the peace, who must indorse upon it the time led of filing, and must enter upon his docket a judgment for the amount confessed, with three dollars costs.
Statement and affidavit to
SEC. 65. Every justice on demand of any person in whose favor a judgment has been confessed as herein before ment provided, or rendered upon trial before him for any sum exceeding ten dollars without cost, shall give a certified transcript of such judgment, and the clerk of the district court of the same county in which judgment was rendered, shall upon the production of any such transcript, file the same in his office, and forthwith enter such judgment in the judgment docket of the district court, and shall note the time of filing such transcript.
SEC. 66. Every such judgment from the time of filing the transcript thereof and docketing the same, shall have the
Certified transeript of judg
same lien on the real estate of the defendant or defendants, constitute lien on in the county, as may be allowed by law to a judgment of
the district court of the same county, shall be equally under the control of the district court, and shall be collected by execution in the same manner and with like effect as the judgment of such district courts; but no execution shall be issued thereon out of the district court until an execution No goods found shall have been issued by a justice and returned, no goods found, which execution so indorsed shall be by the justice returned to said district clerk in case of a transcript having been taken.
Bill of exceptions.
Whenever to be had.
SEC. 67. The only mode of taking a final judgment in a civil action to the district court shall be by appeal as provided herein. When the case before the justice shall turn upon questions of law, and a bill of exceptions shall be filed as provided in section fifty-three of this act, such appeal shall have the same effect as a certiorari at the common law and nothing but a review of the questions of law involved shall be allowed in the district court except as herein provided: amendments to the record so as to intelligently present the questions of law may be allowed. The fact or question whether a decision upon the points of law raised will dispose of the case, shall be determined by the appellate court, and if in the opinion of the court a ruling upon the law of the case will not settle the rights of the parties, the case shall stand for trial de novo. In all other cases of appeal a trial de novo shall be had with a right to parties as of course to amend or substitute new pleadings, but not new bills of items, or particulars, or amendments thereof without leave of court.
SEC. 68. The appealing party shall, within ten days after the rendition of the judgment enter into an undertaking to the adverse party with at least one surety to be approved by the justice in a sum not less than fifty dollars
in any case, nor less than double the amount of the judgment and costs. Conditioner:
First, That the appellant will prosecute his appeal to effect and without unnecessary delay.
Second, That if judgment be rendered against him on the appeal, or his appeal be dismissed, he will satisfy such judgment and costs. Such surety must be a resident of the county and a property holder therein.
The undertaking above provided for may be in substance as follows: A. B. We, A. B. as principal and C. D., as surety,
undertake and promise E. F. (the opposite
Any person inay
Any person may be recited as principal in the undertaking in the absence of the party, varying the form of the ta principal. undertaking to meet the case. Before the justice shall allow an appeal, in addition to the above undertaking he shall require the appellant or his agent to make an affidavit that suchi appeal is made in good faith and not for the purpose of delay, and that he verily believes injustice has been done him by the verdict or judgment, and shall pay all justice and constable's costs for official services, but not the costs of witnesses or subsistence or care of property attached or levied upon. The justice shall be entitled to one dollar and fifty cents for his transcript and allowance of appeal to be prepaid.
Sec. 69. An appeal being allowed, the justice shall make a certified transcript of his docket entries, and shall Hockret entrs, send up to the district court such transcript, together with all the original papers on file in the case, including undertaking and affidavit for the appeal, with a certificate or state
Transı ript of Certificate.
Execution to be recalled.
ment over his signature as justice, that such transcript is correct, and that original papers sent are all that are on file in the case; such appeal papers may be given to the appellant, his agent or attorney, or to the clerk of the district court to which the appeal may be taken, on or before the
second day of the term next following such appeal, and the Timeof trial of case shall stand for argument or trial at such time without
further notice, any rule of the court or law to the contrary notwithstanding If such appeal shall be taken after the second day of the term, the appeal shall not be heard without consent of parties until the next term.
Sec. 70. Upon an appeal being allowed, the justice shall recall any execution issued upon the judgment, and the costs of such execution shall abide the event of the suit on. appeal.
Sec. 71. Upon receiving such appeal papers from a justice, it shall be the duty of the clerk of the district court at any time up to, and upon the second day of the term, to docket the same without a note of issue, and appeals shall stand for trial in the order of the date upon which judgments were severally rendered, the plaintiff in the court below shall be plaintiff above.
Sec. 72. The justice or appellant failing on the second day of the term to which such case shall be appealed, to file such transcript and original papers, the appellee witliout costs (if the fault be that of the justice) and by paying one dollar and fifty cents, (if the fault by that of the appellant) shall be entitled to a transcript of the docket and proceedings before the justice, and may at any time during the term docket the case, and move its dismissal, or for judgment in his favor if he had judgment below, or the cause may stand for trial, or he otherwise dispensed with, as in the opinion of the court justice may require. Sec. 73. No appeal shall be dismissed because of any
. Irregularity. irregularity in taking the same. If the appellant shall
supply the imperfections or irregularity before the cause is reached for argument or trial.
Filing tran. seript.
SEC. 74. No appeal shall be allowed upon judgments No appeat on by confession, or when the judgment below shall be less than confession. twenty-five dollars.
be paid by appel
SEC. 75. If any person, appealing from a judgment When costs to rendered in his favor, shall not recover a greater sum by lant. fifteen dollars than the amount for which judgment was rendered, besides costs and the interest accruing thereon; where the trial is de novo, every such appellant shall pay the costs of such appeal, (including a fee of ten dollars to defendant's attorney); and in case the defendant shall demand a greater set-off, before the justice, there shall be allowed him in case he takes an appeal to the district court, he shall in like manner pay all costs in the appellate court, including a like fee to the plaintiff's attorney.
SEC. 76. When any appeal shall be dismissed or quashed, or when judgment shall be entered in the district. court against the appellant, the surety in the undertaking shall be liable to the appellee for the whole amount of the debt, costs and damages, recovered against the appellant.
SEC. 77. When the term of office of a justice shall expire between the dates of judgment and the time limited king to be given for appeal, such justice may take the undertaking for appeal at any time before he has delivered his docket to his successor, and give the appealing party a transcript, after the delivery of the docket; the undertaking shall be given to his successor, and it shall be his duty to give the transcript and do and perform all things required of his predecessor.
Surety liableto appellee.
SEC. 78. If a justice fail to allow an appeal in a case when the same ought to have been allowed, the district court appeal. or judge thereof, on such fact satisfactorily appearing, may by rule and attachment compel the justice to allow the same, and to return his proceedings in the suit together with all papers required to be returned by him.
Rule to cotapel justice to allow
SEC. 79. Whenever the court is satisfied that the return of the justice is substantially erroneous or defective, the turn. court may, by rule and attachment compel him to amend the