Page:United States Statutes at Large Volume 31.djvu/437

FIFTY-SIXTH CONGRESS. Sess. I. Ch. 786. 1900. 385 and the right to the ossession thereof, so far as the same is thereby determined, upon the party against whom the same is given and against all persons claiming from, through, or under such party after the commencement of such action, except as in this section provided. When service of the summons is· made by publication and judgment is given for want of answer, at any time within two years from the entr thereof, the defendant or his successor in interest as to the wholb or any part of the property shall, upon application to the court or judge thereof, be entitled to an order vacating the judgment and granting him a new trial upon the payment of the costs of the action. ` Sec. 315. If the plaintiff has taken possession of the property before mP<§¤¢;¤ié>¤ Mg wb? the judgment is set aside and a new trial granted, as provide in the isdn; md Sis? 8 ` section ast preceding, such possession shall not be thereby affected in any way, and if judgment be given for the defendant in the new trial he shall be entitled to restitution by execution in the same manner as if he were plaintiff. ~ T Sec. 316. In an action to recover the possession of real property dA<1me¤¤j¤remp¤t1 of by a tenant in dower or his successor in interest, if such a state in_¤$§? ” M Ju g` dower has not been. admeasured before the commencement of the action, the plaintiff shall not have execution to deliver the possession thereof until the same be admeasured, as follows: -» First. At any time after the entry of judgment in favor of the plaintiff, he may, upon notice to the adverse party, move the court for the appointment of rexerees to admeasure the dower out of the real property of which the possession is recovered by the action. The court shall allow such motion unless it appear probable on the hearing that a partition of such property cannot be made without preju- ` dice to the interests of the other owners. In the latter case the court A- shall disallow the motion, and thereafter the plaintiff shall only proceed for; partition or sale of such real property as provided in the chapter of this code entitled “Of Actions or the Partition of Real Property;’l i . · Second. If the court allow the motion, thereafter the proceedings shall be conducted as provided in such chapter. At any time after the confirmation of the report of the referees the plaintiff may have execution for the delivery of the possession of the property according to the admeasurement thereof, and forithe damages recovered, if any, for withholding the same, if such damages remain unsatisfied; Third. If the motion for admeasurement be made `at the term at which judgment was given, the notice thereof shall be served on the adversejparty at such time` as the court by general rule or special order may prescribe. · ‘ CHAPTER THmTY—THREE. OF ACTIONS FOR NUISANCE, WASTE, AND TRESPASS ON REAL PROPERTY; Sec. · Sec. 317. Private nuisance, and action there- I-320. -Sureties in undertaking, when to for; when warrant allowed to justify. y abate it.321. Action for waste, and judgment 318. How warrant issued, and mode of therein. · roceeding under. ’ 322. Actions for trespass in articular 319. When defendant may have stay of. cases, and of judgment therein. warrant. ~ _ 323. Same subject. Sec. 317. Any person whose property is affected by a private Private nuisance. nuisance, or w ose personal enjoyment thereof. i.s in like manner $,,xj,°l,n°°,$“§l},l:‘§{°f$§{E thereby affected, may maintain an action for damages therefor. If 1°W°d*°¤*>¤°° itjud ment be given for the plaintiff in such action, he may, in addition to tie execution toenforce the same, on motion, have an order allowvon xxx1—-—-25