1862 Territory of Dakota Session Laws/Chapter 8/Title XI
TITLE XI.
JUDGMENT.
CHAPTER I.—Judgment in General.
A judgement.Sect. 384. A judgment is the final determination of the rights of the parties in action.
How given.Sect. 385. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, at its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served.
Action dismissed, when.Sect. 386. An action may be dismissed without prejudice to a future action. 1. By the plaintiff before the final submission of the 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 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.
Defendant may proceed to trial, when.Sect. 387. In any case where a set-off or counter claim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed the action, or failed to appear.
CHAPTER II.—Judgment upon Failure to Answer.
Judgement upon failure to answer.Sect. 388. If the taking of an account, or the proof of a fact, or the assessment of damages be necessary to enable the court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with assent of the party not in default, take the account, hear the proof, or assess the damages; or may, with the like assent, refer the same to a referee or master commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial.
CHAPTER III.—Judgment by Confession.
When permitted.Sect. 389. Any person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor, or person having cause of action, confess judgment therefor; whereupon judgment shall be entered accordingly.
Debt, or cause to be stated.Sect. 390. The debt or cause of action shall be briefly stated in the judgment, or in a writing to be filed as pleadings in other actions.
To authorize proceedings for enforcement.Sect. 391. Such judgment shall authorize same proceedings for its enforcement, as judgments rendered in actions regularly brought and prosecuted; and the confession shall operate as a release of errors.
If attorney confess judgement.Sect. 392. Every attorney, who shall confess judgment in any case, shall, at the time of making such confession, produce the warrant of attorney for making the same, to the court before which he makes the confession, and the original or a copy of the warrant shall be filed with the clerk of the court in which the judgment shall be entered.
Warrant of attorney of no force unless properly witnessed.Sect. 393. If any person be in custody in a civil action at the suit of another, no warrant of attorney executed by the person in custody, to confess judgment in favor of the person at whose suit he is in custody, shall be of any force, unless some attorney expressly named by the person in custody, be present and sign the warrant of attorney as witness.
CHAPTER IV.—Manner of giving and entering Judgment.
When trial by jury, judgement how rendered.Sect. 394. When a trial by jury has been had, judgment must be rendered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.
When verdict is special.Sect. 395. Where the verdict is special, or where there has been a special finding or particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered.
When judgement contrary to verdict.Sect. 396. Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.
If counter claim or set-off exceeds claim.Sect. 397. If the counter claim or set-off, established at the trial, exceeds the plaintiff's claim so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any affirmative relief, judgment shall be given therefor.
Infant may show cause against order after arriving at age 21.Sect. 398. It shall not be necessary to reserve in a judgment or order, the right of an infant to show cause against it, after his attaining full age; but in any case in which, but for this section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment.
Judgement and orders to be entered on journal.Sect. 399. All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.
Clerk make complete record, when.Sect. 400. The clerk shall make a complete record of every cause, as soon as it is finally determined, unless such record or some part thereof be duly waived.
To be made in vacation, and signed by judge next term.Sect. 401. He shall make up such record in each case, in the vacation next after the term at which the same was determined, and the presiding judge of such court shall, at its next term thereafter, subscribe the same.
Made up from what.Sect. 402. The records shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if the items of an account or the copies of a paper attached to the pleadings be voluminous, the court may order the record to be made by abbreviating the same, or inserting a pertinent description thereof, or by omitting them entirely. Evidence must not be recorded.
When acts and proceedings of court have not been brought up.Sect. 403. When the judicial acts or other proceedings of any court have not been regularly brought up and recorded by the clerk thereof, such court shall cause the same to be made up and recorded within such time as it may direct. When they are made up, and upon examination found to be correct, the presiding judge of such court shall subscribe the same.
No complete record made, when.Sect. 404. No complete record shall be made: 1. In criminal prosecutions where the indictment has been quashed, or where the prosecuting attorney shall have entered a nolle prosequi on the indictment. 2. In cases where an action has been dismissed without prejudice to a future action. 3. In actions in which, in open court, at the term at which the final order of judgment shall be made, both parties shall declare their agreement that no record shall be made.
Where action has been dismissed without prejudice to future action, record may be made.Sect. 405. In cases where an action has been dismissed without prejudice to a future action, the clerk shall make a complete record of the proceedings, upon being paid for making the same by the party desiring the record to be made.
Complete record in certain case.Sect. 406. A complete record shall be made in the case mentioned in section three hundred and eighty-seven, unless waived by the parties.
CHAPTER V.—Conveyance by Commissioners.
Real property conveyed, when.Sect. 407. Real property may be conveyed by master commissioners as hereinafter provided: 1. When by an order or judgment in an action or proceeding, a party is ordered to convey such property to another, and he shall neglect or refuse to comply with such order or judgment. 2. When specific real property is required to be sold under an order or judgment of the court.
Sheriff as commissioner. Sales conform to law.Sect. 408. A sheriff may act as master commissioner under the second subdivision of the preceding section. Sales made under the same shall conform in all respects to the laws regulating sales of land upon execution.
Commissioner's deed.Sect. 409. The deed of a master commissioner shall contain the like recital, and shall be executed, acknowledged, and recorded, as the deed of a sheriff, of real property sold under execution.