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CHAPTER 34.

JUDGMENT IN GENERAL.

3183. Judgment defined. A judgment is a final determination of the rights of parties in an action or proceeding.

Cal. C. Civ. P. 2 577.

Judgment by default, 22 3179, 3180. Judgment by confession, 22 3213-3216. Judgment on demurrer, 3171. Judgment on submission of action, 3218. Judgment on dismissal, ? 3181.

The amount of a judgment upon a promissory note should not be left open for computation. A judgment to be valid must be for a fixed and defi

[C. L. § 3339.

nite amount. Baskin v. Godbe, 1 U. 28. Decree concerning road held not to be void for uncertainty. Wilson v. Hull, 7 U. 90; 24 P. 799.

If the judgment of a court having jurisdiction has never been reversed or modified, it is binding upon a party and their privies, and conclusive of the questions litigated. Hodson v. U. P. Ry. Co., 14 U. 381; 47 P. 859. See "Estoppel" under 3479.

3184. Judgment for or against one or more parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. [C. L. § 3340.

Cal. C. Civ. P. 2 578. against co-defendant, ? 2974. Power of the court Costs, ?? 3338-3357. Cross-complaint may be filed in cases involving water rights. ? 1274. 3185. Judgment in case of principal and sureties. Upon the rendition of any judgment, if it shall be shown that one or more of the defendants against whom the judgment is to be rendered are principal debtors, and others of the said defendants are sureties of such principal debtors, the court may order the judgment so to state, and upon the issuance of an execution upon such judg ment, it shall direct the sheriff to make the amount due thereon out of the goods and chattels, lands and tenements of the principal debtor or debtors, or if sufficient thereof cannot be found within his county to satisfy the same, then that he levy and make the same out of the property, personal or real, of the judgment debtor who was surety.

Mont. Civ. P. ? 1001*.

Surety paying may be substituted to rights of

judgment creditor, ? 3496. Surety paying may file notice and enforce repayment, 23270.

3186. Judgment against one or more; proceedings as to others. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper. [C. L. § 3341.

Cal. C. Civ. P. 2 579.

Action against parties jointly or jointly and severally liable, ?? 2918, 2954. Judgment as to parties

not originally served, 22 3201-3206. Execution against joint property of all defendants and individual property of defendants served, 3234.

3187. Relief not to exceed demand in default case; in other cases. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. [C. L. § 3342.

Cal. C. Civ. P. 2 580.

Judgment on default, ? 3179.

On default, the plaintiff is entitled to such a decree as his well pleaded allegations will justify. Hartog v. Tibbits, 1 U. 328.

A plaintiff is not entitled to judgment upon the pleadings where a material allegation in his com

plaint is denied by the answer.
S. M. Co., 3 U. 254; 2 P. 703.

Reich v. Rebellion

Where defendant defaults and third parties intervene, the court may find that at the commencement of the action plaintiff was a creditor of defendant. Am. Oak Leather Co. v. Union Bank, 9 U. 87; 33 P. 246.

3188. Married woman liable as if single. Judgment for or against a married woman may be rendered and enforced as if she were single. Mont. Civ. P. ? 1006.

Equal property and contractual rights of married woman, Con. art. 22, sec. 2; ?? 1198-1207, 2904.

3189. Judgment of dismissal, except on merits, not a bar. A final judgment dismissing the complaint, either before or after a trial, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.

Mont. Civ. P. 1007.

Dismissal, 3181, 3182.

3190. Judgment for costs. Upon the dismissal or disposition of an action in which the court has jurisdiction of the subject matter of the action, it is the duty of the court to render judgment for costs.

Mont. Civ. P. ? 1008.

Costs when action dismissed for want of jurisdiction, ? 3345.

3191. Entry of judgment on verdict within twenty-four hours. Exceptions. When trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument, or further consideration, or grant a stay of proceedings. [C. L. § 3407.

Cal. C. Civ. P. 2 664. Entering verdict, 3166. sion within thirty days, 23168.

Trial by court. Deci-
Entry of judgment

on referee's report, 3177. Dismissal of action for failure to demand judgment within six months, 3181.

Judgment entered not in conformity with verdict may be amended. Ryan and Ream Cattle Co. v. Slaughter, 6 U. 278; 21 P. 997.

3192. Calling up case reserved for argument. When the case is reserved for argument or further consideration, as mentioned in the last section, it may be brought by either party before the court for argument. [C. L. § 3408. Cal. C. Civ. P. 2 665.

3193. Judgment for defendant on counterclaim, etc. If a counterclaim established at the trial exceed the plaintiff's demand, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. L. § 3409.

Cal. C. Civ. P. 2 666.

Verdict on counterclaim, 23164.

[C.

3194. Form of judgment in action for personal property. Judgment for kind of money specified. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. In an action on a contract or obligation in writing for the direct payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein; and in all actions for the recovery of money, if the plaintiff allege in his complaint that the same was understood and agreed by the respective parties to be payable in a specified kind of money or currency, and this fact is admitted by the default of the defendant or established by the evidence, the judgment for the plaintiff must be made payable in the kind of money or currency so. alleged in the complaint; and in an action against any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff must be made payable in the kind of money or currency so received by such person. [C. L. § 3410.

Cal. C. Civ. P. 2 667.

Interest and costs to be included in judgment, 3353. Judgment dividing conveyance of real property, proceedings if not delivered, 3279. Verdict in action to recover personal property, 3165.

Judgment in claim and delivery for an amount in excess of that claimed, is erroneous, but not void. Darke v. Ireland, 4 U. 192; 7 P. 714.

3195. Judgment book. Entries. The clerk must keep, with the records of the court, a book to be called the judgment book, in which the judgments and findings of fact must be entered. [C. L. § 3411*; '92, p. 19.

Cal. C. Civ. P. 2 668*.

3196. Judgment rendered when party dies after verdict. Not a lien; paid by estate. If a party die after a verdict or decision upon any

issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment is not a lien on the real property of the deceased party, but is payable in the course of administration of his estate. [C. L. § 3412. Execution of judgment rendered before death,

Cal. C. Civ. P. 2 669.

Death pending action, substitution, 2920. 22 3238, 3863. Presentment to executor or administrator, ? 3860.

3197. Clerk to make up judgment roll immediately. Defined. Immediately after entering the judgment the clerk must attach together and file the following papers, which constitute the judgment roll:

1. In case the complaint be not answered by any defendant, the summons, with the affidavit or proof of service, and the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment.

2. In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exception taken and filed, all orders, matters, and proceedings deemed excepted to without a bill of exceptions, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment. If there are two or more defendants in the action, and any one of them has allowed judgment to pass against him by default, the summons, with proof of its service upon such defendant, must also be added to the other papers mentioned in this subdivision. [C. L. § 3413*.

Mont. Civ. P. 2 1196; Cal. C. Civ. P. 2 670*. See Sup. '95, p. 19, 670.

Instructions requested or given become part of judgment roll, ? 3151.

Pleading which has been stricken from the files is still a part of the judgment roll. Gregg v. Groesbeck, 11 U. 310; 40 P. 202. Also order over

ruling demurrer. Thomas v. Glendinning, 13 U. 47; 44 P. 652.

Neither affidavit nor order for publication of summons is part of judgment roll. Amy v. Amy, 12 U. 278; 42 P. 1121. Nor additional findings made after judgment. Kahn v. Central Smelting Co., 2 U. 371.

3198. Docketing judgment. Lien for five years. Filing transcript in other counties. Immediately after filing the judgment roll the clerk must make the proper entries of the judgment, under appropriate heads, in the docket kept by him, and from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county in which the judgment is given, owned by him at the rendition of the judgment, or by him thereafter acquired during the existence of said lien in his own right. A transcript of the original docket, certified by the clerk, may be filed with the recorder of any other county, and from the time of the filing the judgment becomes a lien upon all the real property of the judgment debtor not exempt from execution in such county, owned by him at the time, or which he may afterward, and before the lien expires, acquire. The lien shall continue for five years unless the judgment be previously satisfied, or unless the enforcement of the judgment be stayed on appeal by the execution of a sufficient undertaking as provided in this code, in which case the lien of the judgment ceases. §§ 3414, 3417*.

Cal. C. Civ. P. 2 671*. See Sup. '95, p. 20. Lien of judgments entered in U. S. courts, ? 1289. Where change of venue had, clerk must transmit copy of judgment to original county, ? 2937. Limitation of action on judgment, eight years, 2874. Judgment rendered after death not a lien, 23196. Satisfaction of judgment, ?? 32073212. Revivor of judgment, ?? 3237, 3268.

[C. L.

This section applies to judgments in favor of the United States. Thompson v. Avery, 11 U. 214; 39 P. 829.

In the absence of a statutory provision, a judgment is not a lien on debtor's land. Id.

At common law a judgment recovered for a penalty in a criminal proceeding created no lien on judgment debtor's land. Id.

3199. Judgment docket, form of. Entries. The docket mentioned in the last section is a book which the clerk keeps in his office with each page divided into columns and headed as follows: judgment debtors; judgment creditors; judgment; time of entry; where entered in judgment book; appeals-when taken; judgment of appellate court; satisfaction of judgment; when entered. If judgment be for the recovery of money or damages, the amount must be stated in the docket under the head of judgment; if the judgment be for any other relief, a memorandum of the general character of the relief granted must be

stated. The names of the defendants must be entered in the docket in alphabetical order. [C. L. § 3415.

Cal. C. Civ. P. ? 672.

Entry of satisfaction of judgment, ? 3209.

3200. Docket open to inspection. The docket kept by the clerk is open at all times during office hours for the inspection of the public without charge; the clerk must arrange the several dockets kept by him in such a manner as to facilitate their inspection. [C. L. § 3416. Cal. C. Civ. P. 2 673.

Books to be kept by clerk, ? 601.

CHAPTER 35.

PARTIES NOT SUMMONED.

3201. Joint debtors not originally served, may be summoned to show cause. When a judgment is recovered against one or more of several persons jointly indebted upon an obligation, by proceeding as provided in section twenty-nine hundred and fifty-four, those who were not originally served with the summons and did not appear in the action, may be summoned to show cause why they should not be bound by the judgment in the same manner as though they had been originally served with the summons. [C. L. § 3662.

Cal. C. Civ. P. 2 989.

Execution against joint defendants when service was not had on all, 3234. Action against parties

jointly, or jointly and severally liable, ?? 2918, 2954. Judgment against one or more, 22 3184-3186.

3202. Id. Summons. Service. New complaint unnecessary. The summons, as provided in the last section, must describe the judgment and require the person summoned to show cause why he should not be bound by it, and must be served in the same manner and returnable within the same time as the original summons. It is not necessary to file a new complaint. [C. L. $3663.

Cal. C. Civ. P. 990.

3203. Id. Affidavit accompanying summons showing amount due. The summons may be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment, or some part thereof, remains unsatisfied, and must specify the amount due thereon. [C. L. § 3664. Cal. C. Civ. P. 2 991*.

3204. Answer. Defense other than by limitation. Upon such summons the defendant may answer within the time specified therein, denying the judgment, or setting up any defense which may have arisen subsequently, or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the statute of limitations. [C. L. $3665.

Cal. C. Civ. P. 7 992.

3205. Id. What constitute the written allegations. If the defendant, in his answer, deny the judgment, or set up any defense which may have arisen subsequently, the summons with the affidavit annexed and the answer constitute the written allegations in the case; if he deny his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons, with the affidavit annexed, and the answer, constitute such written allegations. [C. L. § 3666.

Cal. C. Civ. P. 2 993.

3206. Issues tried as in other cases. Judgment. The issues formed may be tried as in other cases, but when the defendant denies in his answer any

liability on the obligation upon which the judgment was rendered, if a verdict be found against him, it must be for not exceeding the amount remaining unsatisfied on such original judgment, with interest thereon. [C. L. § 3667.

Cal. C. Civ. P. 994.

CHAPTER 36.

SATISFACTION OF JUDGMENT.

3207. Judgment may be satisfied by owner or attorney. Method. A judgment may be satisfied in whole or in part, or as to any or all the judgment debtors, by an instrument in writing, signed and acknowledged by the owner thereof, or, at any time within five years after the rendition thereof, when no assignment has been filed, by the attorney of record of the judgment creditor, or by a brief acknowledgment of satisfaction, signed as aforesaid and entered on the docket of the judgment in the county where first docketed, with the date affixed, and witnessed by the clerk. Every satisfaction of a part of a judgment, or as to some of the judgment debtors, shall state the amount paid thereon or for the release of such debtors, naming them.

Wis., S. & B. An. S. (1889) 2908.

Satisfaction of judgment of U. S. court, record, ?? 1289, 1290.

3208. Effect of satisfaction by attorney whose authority is revoked. No satisfaction by an attorney shall be conclusive upon the judgment creditor in respect to any person who shall have notice of revocation of the authority of such attorney, before any payment made thereon, or before any purchase of property bound by such judgment shall have been effected.

Wis., S. & B. An. S. (1889) 2909.

Authority of attorney, 115.

3209. When satisfaction filed, entries by clerk. On filing with him an instrument of satisfaction, duly executed and acknowledged, the clerk shall file the same with the papers in the case, and enter the same on the court record, if any, of the case, and shall also enter a brief statement of the substance thereof, including the amount paid, on the margin of the judgment docket, with the date of filing the satisfaction.

Wis., S. & B. An. S. (1889) 2910.

Satisfaction to be entered on docket, 3199.

3210. Satisfaction directed by court, when. When a judgment shall have been fully paid and not satisfied, or the instrument of satisfaction shall have been lost, the court in which the same was recovered may, upon satisfactory proof, authorize the attorney of the judgment creditor to satisfy the same, or may by order declare the same satisfied, and direct satisfaction to be entered upon the docket.

Wis., S. & B. An. S. (1889) ? 2911.

3211. Satisfaction discharges lien. Partial satisfaction to be indorsed on execution. When a judgment shall have been satisfied, in whole or in part, or as to any judgment debtor, and such satisfaction entered upon the docket as aforesaid, such judgment shall, to the extent of such satisfaction, be discharged and cease to be a lien; and if any execution shall be thereafter issued thereon, it shall be indorsed with a memorandum of such partial satisfaction, and a direction to collect only the residue thereof, or to collect only from the judgment debtors remaining liable thereon.

Wis., S. & B. An. S. (1889) 2912.

Lien of judgments, ? 3198.

3212. Transcript of satisfaction may be filed in other counties. When any satisfaction of a judgment shall have been entered on the docket, as aforesaid, in the county where the same was first docketed, a certified transcript

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