Time when trial must be commenced. When Court may, of its own motion, postpone trial. Postponement by consent. Postponement upon CHAPTER VI. TIME OF TRIAL AND POSTPONEMENTS IN JUSTICES' COURTS. SECTION 873. Time when trial must be commenced. 874. When Court may, of its own motion, postpone trial. 875. Postponement by consent. 876. Postponement upon application of a party. 877. No continuance for more than ten days to be granted, unless upon filing of undertaking. 873. Unless postponed as provided in this Chapter, or unless transferred to another Court, the trial of the action must commence at the expiration of one hour from the time specified in the summons for the appearance of defendant, and the trial must be continued, without adjournment for more than twenty-four hours at any one time, until all the issues therein are disposed of. 874. The Court may, of its own motion, postpone the trial: 1. For not exceeding one day, if, at the time fixed by law or by an order of the Court for the trial, the Court is engaged in the trial of another action; 2. For not exceeding two days, if, by an amendment of the pleadings, or the allowance of time to make such amendment or to plead, a postponement is rendered necessary; 3. For not exceeding three days, if the trial is upon issues of fact, and a jury has been demanded. 875. The Court may, by consent of the parties, given in writing or in open Court, postpone the trial to a time agreed upon by the parties. 876. The trial may be postponed upon the appliapplication cation of either party, for a period not exceeding four of a party. months: 1. The party making the application must prove, by his own oath or otherwise, that he cannot, for want Same. of material testimony, which he expects to procure, safely proceed to trial, and must show in what respect the testimony expected is material, and that he has used due diligence to procure it, and has been unable to do so; 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the defendant is subject to arrest on execution, in the same manner as if he had not been discharged; 3. If the application is on the part of a defendant under arrest, before it can be granted he must execute an undertaking, with two or more sufficient sureties, to be approved by, and in a sum to be fixed by, the Justice, to the effect that he will render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. On filing the undertaking specified in this subdivision, the Justice must order the defendant to be discharged from custody; 4. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposition before the Justice, and that the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witness was produced; -But the Court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or No continuance for ten days to be granted, unless upon filing of undertaking. offered and overruled as improper, the trial must not be postponed. upon 877. (§ 585.) No adjournment must, unless by more than consent, be granted for a period longer than ten days, the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the Justice, with two sureties, to be approved by the Justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking. CHAPTER VII. TRIALS IN JUSTICES' COURTS. SECTION 878. Issue defined and the different kinds. 879. Issue of law, how raised. 880. Issue of fact, how raised. 881. Issue of law, how tried. Issue defined, and the different kinds. Issue of law, how raised. 882. Issue of fact, how tried. 883. Jury, how waived. 884. Either party failing to appear, trial may proceed at re quest of other party. 885. Challenges to jurors. 886. Manner of pleading a written instrument. 887. If a copy of an instrument be filed, the signatures will be deemed admitted, unless denied under oath. 878. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. 879. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. 880. An issue of fact arises: Issue of fact, how 1. Upon a material allegation in the complaint con- raised. troverted by the answer; and, 2. Upon new matter in the answer, except an issue of law is joined thereon. 881. An issue of law must be tried by the Court. 882. An issue of fact must be tried by a jury, unless a jury is waived, in which case it must be tried by the Court. 883. A jury may be waived: 1. By consent of parties, entered in the docket; 2. By a failure of either party to demand a jury before the commencement of the trial of an issue of fact; 3. By the failure of either party to appear at the time fixed for the trial of an issue of fact. 884. If either party fails to appear at the time fixed for trial, the trial may proceed at the request of the adverse party. 885. (§ 590.) Issue of law, how tried. Issue of how tried. of fact, Jury, how waived. Either party failing to trial may proceed at request of other party to jurors. The challenges are either peremp- Challenges tory or for cause. Each party is entitled to three peremptory challenges. Either party may challenge for cause on any grounds set forth in Section 602. Challenges for cause must be tried by the Justice. 886. (§ 576.) When the cause of action or counter claim arises upon an account or instrument for the payment of money only, the Court, at any time before the trial, may, by an order under his hand, require the original to be exhibited to the inspection of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the order; or, if such order is not obeyed, the account or instrument cannot be given in evidence. Manner of pleading a written in strument. If a copy of an be filed, the signatures will be deemed admitted, unless denied 887. (§ 577.) If the plaintiff annex to his cominstrument plaint, or file with the Justice at the time of issuing the summons, the original or a copy of the promissory note, bill of exchange, or other written obligation for the payment of money, upon which the action is brought, the defendant is deemed to admit the genuineness of the signatures of the makers, indorsers, or assignors thereof, unless he specifically deny the same in his answer, and verify the answer by his oath. under oath. CHAPTER VIII. JUDGMENTS (OTHER THAN BY DEFAULT) IN JUSTICES' COURTS. SECTION 889. Judgment by confession. 890. Judgment of dismissal entered in certain cases without prejudice. 891. Judgment upon verdict. 892. Judgment after trial by the Court. 893. Judgment when the defendant is subject to arrest. 894. If the sum found due exceeds the jurisdiction of the Justice, the excess may be remitted. 895. Offer to compromise before trial. 896. Costs must be included in the judgment. 897. Abstract of judgment. 898. Abstract may be filed and docketed in County Clerk's office. 899. Effect of docketing. 900. Judgment not a lien unless abstract is recorded in the Recorder's office. Judgment of dismissal certain fession. Judgments upon confession may be 890. (§ 591.) Judgment that the action be dis entered in missed, without prejudice to a new action, may be entered with costs, in the following cases: cases without prejudice. 1. When the plaintiff voluntarily dismisses the action before it is finally submitted; |