3166. Clerk to enter verdict, etc. Upon receiving a verdict, an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length; and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it. [C. L. § 3377.

Judgment must be entered within twenty-four hours, exception, 3191.

CHAPTER 30.

TRIAL BY THE COURT.

3167. Actions tried by court unless jury demanded or case referred. All issues in civil actions shall be tried by the court, unless, in cases where a jury may be had, the same shall be demanded in the manner prescribed in section thirty-one hundred and twenty-nine, or unless in a proper case, a referee or master in chancery shall be appointed. [C. L. § 3378*.

3168. Decision of court to be written. When filed. Upon a trial of a question of fact by the court its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision. [C. L. § 3379.

3169. Findings and conclusions to be separately stated. In giving the decision, the facts found and the conclusions of law must be separately stated, and judgment must thereupon be entered accordingly. [C. L. § 3380.

3170. Findings of fact, when waived. Findings of fact may be waived by the several parties to an issue of fact:

1. By failing to appear at the trial.

2. By consent in writing, filed with the clerk.

3. By oral consent, in open court, entered in the minutes. [C. L. § 3381.

3171. Proceedings after issues of law determined. On a judgment for the plaintiff upon an issue of law, he may proceed in the manner prescribed by the first two subdivisions of section thirty-one hundred and seventy-nine, upon the failure of the defendant to answer. If judgment be for the defendant upon an issue of law, and the taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference may be ordered, as in that section provided. [C. L. § 3382.

CHAPTER 31.

REFERENCES AND TRIALS BY REFEREES.

3172. Reference on written consent of parties. Fees of referee. All or any of the issues in an action whether of fact or law, or both, may be referred by the court or judge thereof upon the written consent of the parties. The fees of referees shall be fixed by the court and shall in no case exceed ten dollars per day, except upon the written consent of both parties to the reference. § 3383*.

3173. When court may order a reference. When the parties do not consent to the reference the court may upon the application of either party or of its own motion direct a reference in the following cases:

1. When the trial of an issue of fact will require the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue or to report upon any specific question of fact therein; or, 2. When the taking of an account is necessary for the information of the court before judgment or for carrying a judgment or order into effect; or,

When a question of fact other than upon the pleadings shall arise upon motion or otherwise in any stage of the action; or,

4.

Where it is necessary for the information of the court in a special proceeding. [C. L. § 3384.

Cal. C. Civ. P. 2 639.

Trial by judge pro tempore, Con. art. 8, sec. 5; 685. Court may order reference, 3128. Appointment of referee to hear evidence on default, 3179.

Appointment of referee in proceedings supplementary, 3272. Appointment of referee in probate proceedings, 3864.

3174. Referees agreed upon or appointed by court. Number. Qualifications. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge must appoint one or more referees not exceeding three, who reside in the judicial district in which the action or proceeding is triable and against whom there is no legal objection. [C. L. § 3385.

Cal. C. Civ. P. § 640*.

When three appointed, all must meet but majority may act, 3481.

3175. Objections to referees same as to petit jurors. Either party may object to the appointment of any person as referee for the same cause for which challenges for cause may be taken to a petit juror in the trial of a civil action. [C. L. § 3386*.

Cal. C. Civ. P. 2 641*.

3176. Id. Must be heard by court.

Evidence. The objections

taken to the appointment of any person as referee must be heard and disposed of by the court or judge thereof. Affidavits may be read and witnesses examined as to such objections. [C. L. § 3387.

Cal. C. Civ. P. 2 642.

3177. Trial by referee. Power. Findings and conclusions. Appeal. The trial by referee shall be conducted in the same manner as a trial by the court. Upon such trial the referee shall have the same power to grant adjournments and allow amendments to any pleading as the court would have and upon the same terms and with like effect. He shall give to the parties or their attorneys at least ten days' notice of the time and place of trial; and, upon the written request of either party, it shall be his duty to fix such time and place for trial, and give such notice thereof. He must state the facts found by him and conclusions of law separately, and report the same to the district court, and the district court may review such report and on motion enter judgment thereon, or set aside, alter, or modify the same, and enter judgment thereon, so altered or modified, and may require the referee to amend his report when necessary. The judgment so entered by the district court may be appealed from to the supreme court in like manner as from judgments in other cases. When the reference is to report the facts, the report shall have the effect of a special verdict.

Wis., S. & B. An. S. (1889) ? 2865*. Referee to settle and sign bill of exceptions, 3290. Postponement by referee, costs, 23133, 3346. Provisions respecting evidence equally applicable to trial before referee, 23480. Special verdict, ?? 3162, 3163. Contempt before referee, punishment, 3372. The order of reference may be amended and sent back to the referee at any stage in the proceedings. U. S. v. The Church, 6 U. 9; 21 P. 503-524.

Under the general order of reference the referee has the same power in trying the cause that the court would have if it tried the cause, but where a

cause is tried before a referee and he reports, then judgment must be entered in the court and a motion for a new trial made before the court and statement settled for the same by the referee, whereupon the court passes on the motion. Reever v. White, 8 U. 188: 30 P. 685.

The findings of a referee and a decree of the court thereon, upon motion for a new trial entered within the time allowed by statute, may be set aside by the court at a subsequent term. Wasatch Mining Co. v. Jennings, 14 Ú. 221; 46 P. 1106.

3178. Referee must be sworn. May administer oaths. The referees before proceeding to hear any testimony must be sworn well and truly to hear and determine the facts referred to them and true findings render according to the evidence, and they have power to administer oaths to all witnesses produced before them.

N. Dak. (1895) 5461.

CHAPTER 32.

JUDGMENT UPON FAILURE TO ANSWER.

3179. Judgment on failure to answer. Judgment may be had, if the defendant fail to answer the complaint, as follows:

1. In an action arising upon contract for the recovery of money or damages only, if no answer, demurrer, or motion has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, and the complaint and proof of service of summons shall have been filed, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the complaint, including the costs, against the defendant, or against one or more of several defendants, in the cases provided for in section twenty-nine hundred and fifty-four. If the complaint shall not have been verified, it must be verified before judgment is entered.

2. In other actions, if no answer, demurrer, or motion has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, and the complaint and proof of service of the summons shall have been filed, the clerk must enter the default of the defendant, and thereafter the plaintiff may apply for the relief demanded in the complaint. If the taking of an account or the proof of any fact is necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may in its discretion order a reference for that purpose. And where the action is for the recovery of damages, in whole or part, the court may order the damages to be assessed by a jury; or, if to determine the amount of damages, the examination of a long account is necessary, by a reference as above provided.

3. In actions where the service of the summons was by publication or personal service out of the state, the plaintiff, upon the expiration of the time for answering, may, upon proof of service, and that no answer, demurrer, or motion has been filed, apply for judgment; and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the state, must require the plaintiff, or his agent, to be examined on oath respecting any payments that have been made to the plaintiff, or to anyone for his use, on account of such demand, and may render judgment for the amount or other relief which he is entitled to recover. [C. L. § 3345*.

Cal. C. Civ. P. ? 585".

Judgment on failure to answer in garnishment proceedings, 3098. Setting aside judgment by default, 3005. Time to appear after service, ? 2939. On default, judgment cannot exceed demand, 23187.

In entering a judgment hereunder, the clerk acts ministerially, not judicially. Nounnan v. Toponce, 1 U. 168.

In action for damages for conversion requiring proof to ascertain proper amount of damages, the clerk cannot enter judgment by default. Judgment so entered by him is a nullity. Id.

Pendency of motion to strike out complaint does not prevent judgment by default. Greenfield v. Wallace, 1 U. 188.

The court cannot render a decree intelligibly

upon default, where the mortgage is not set out in the complaint. Hussey v. Smith, 1 U. 241.

Where a judgment is taken by default, no finding of the court is necessary; and where the action is for unliquidated damages, it will be presumed, in the absence of any statement on appeal, or showing to the contrary, that the court below complied with the law in all respects and properly assessed the damages. Walker Bros. v. Continental Insurance Co., 2 U. 331.

Where one of the attaching creditors files no answer to a suit brought to recover damages for the unauthorized acts of a sheriff, and the plaintiff fails to show liability as to any of such creditors, it is not error to deny judgment by default against a creditor thus failing to file an answer. Munns v. Loveland, — U. —; 49 P. 743.

3180. Judgment for part not controverted. Formalities. If the answer in any case denies or controverts only part of the cause or causes of action alleged in the complaint, the plaintiff may take judgment by default for the undisputed portion, leaving the action to proceed, as to the part controverted by the answer. Any of the formalities of the preceding section, if not insisted on at the proper time, shall be deemed waived.

Col., Mills' An. C. (1896) ? 168*.

Allegations not denied taken as true, ?? 2981, 2996.

CHAPTER 33.

JUDGMENT ON DISMISSAL OR NONSUIT.

3181. When action may be dismissed or nonsuit entered. An action may be dismissed, or a judgment of nonsuit entered in the following cases: 1. By the plaintiff himself at any time before trial, upon the payment of costs, if a counterclaim has not been made, or affirmative relief sought by the answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon.

2. By either party upon the written consent of the other.

3. By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.

4. By the court, when upon the trial and before the final submission of the case the plaintiff abandons it.

5. By the court upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury; provided, that the offering of evidence after the overruling of a motion for a nonsuit shall not be deemed or considered a waiver of the exception taken by the defendant to the order overruling such motion.

6. By the court, when after verdict or final submission the party entitled to judgment neglects to demand and have the same entered for more than six months.

The dismissal mentioned in the first two subdivisions is made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. [C. L. § 3343*; '94, p. 42*.

Cal. C. Civ. P. 2 581.

'95, p. 14, 581*.

See Sups. '89, p. 371, and

Judgment of dismissal does not bar new action unless rendered upon the merits, 3189. Costs on dismissal, etc., 3190.

After plaintiff submits case to jury and verdict is rendered, court will not disturb same, though plaintiff was entitled to judgment on the pleadings. Smith v. Faust, 1 U. 90. When answer fails to make issue, plaintiff is entitled to judgment on motion. Id.

Non-joinder of necessary parties plaintiff is ground for nonsuit. Goodspeed v. Wasatch S. L. Works, 2 U. 263.

Fact that plaintiff is a minor is no ground for nonsuit. Newton v. Brown, 1 U. 287.

SUBDV. 1. But where answer though demanding affirmative relief fails to set up facts entitling to it, dismissal on motion of plaintiff is proper. Flygare v. Maloney, 12 U. 497; 23 P. 879.

SUBDV. 5. Nonsuit will not be granted unless a verdict for plaintiff would necessarily have to be set aside. Saunders v. Sou. Pac. Co., 13 U. 275; 44 P. 932. Bowers v. U. P. Ry. Co., 4 U. 215; 7 P. 251.

Where evidence tends to show a case in all its parts, though slight, inconclusive, and far from satisfactory, nonsuit should be denied. Cunningham v. U. P. Ry. Co., 4 U. 206; 7 P. 795. Trihay v. Brooklyn Lead M'g Co., 4 U. 468; 11 P. 612. Lowe v. S. L. City, 13 U. 91; 44 P. 1050.

Where plaintiffs show contract but no damages, granting nonsuit not reversible error. Dunn, 7 U. 497; 27 P. 692.

Ternes v.

In action for damages for negligence, the court if in any case it is authorized to grant nonsuit on ground that negligence of injured party is such as to preclude recovery, can only do so when it clearly

appears that but for such contributory negligence the accident could not have happened. Woods v. Sou. Pac. Co., 9 U. 146; 33 P. 628.

Where the injury was caused by the defective condition of the coupling and drawhead of a freight car, and there was a conflict in the evidence; held, that a motion for nonsuit was properly denied. Wells v. D. & R. G. W. Ry. Co. 7 U. 482; 27 P. 688.

Upon an order of reference requiring the referee to make findings of facts and conclusions of law, the referee may grant a nonsuit. Reever v. White, 8 U. 188; 30 P. 685.

Where the testimony tends to show that the car of defendant was run at the rate of about twenty miles an hour, and that no gong was sounded, and no bell rung; held, that it was error to grant a motion for a nonsuit. Dederichs v. Salt Lake St. Ry. Co., 13 U. 34; 44 P. 649.

Upon the question of negligenee, the court may withdraw a case from the jury and direct a verdict, where the evidence is undisputed, or is so conclusive that the court would be compelled to set aside a verdict in opposition to it. Sou. Pac. Co. v. Pool, 160 U. S. 438; same case, 7 U. 303; 26 P. 654. When a defendant, under ? 3343, C. L. 1888, puts in testimony after a motion for a nonsuit is overruled, the error, if any, in refusing the nonsuit is waived. Brown v. Sou. Pac. Co., 7 U. 288; 26 P. 579. Thompson v. Avery, 11 U. 214; 39 P. 829. Ensign v. Fisher, - U. -; 47 P. 950.

Fraud cannot be presumed from mere suspicious circumstances, but must be proved, and a nonsuit will be granted where there is no testimony offered by the plaintiff in his direct case tending to establish a prima facie case. Ensign v. Fisher, U. -; 47 P. 950.

3182. Judgment on merits in all other cases. In every case, other than those mentioned in the last section, judgment must be rendered on the merits. [C. L. § 3344.

Cal. C. Civ. P. 2 582.