3274. Order to examine debtor of judgment debtor.. Affidavit. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and, upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the judge may, by an order, require such person or corporation, or an officer or member thereof, to appear at a specified time and place, before him, or a referee appointed by him, and answer concerning the same. [C. L. § 3455. Cal. C. Civ. P. ?717. See "garnishment," 22 3090-3113. Board of education of a city is a public corporation, and not subject to process hereunder. Chamberlain v. Watters, 10 U. 298; 37 P. 566. Van Cott v. Pratt, 11 U. 209; 39 P. 827. Such exemption being given on the ground of public policy, cannot be waived. Van Cott Y. Pratt, 11 U. 209; 39 P. 827. 3275. Witnesses must testify as on trial of issue. Witnesses may be required to appear and testify before the judge or referee, upon any proceeding under this chapter in the same manner as upon the trial of an issue. $ 3456. Cal. C. Civ. P. 2 718. [C. L. 3276. Order to apply property on execution. Judgment. The judge or referee may order any property of the judgment debtor, not exempt from execution, in the hands of such debtor, or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment. § 3457. Cal. C. Civ. P. ? 719. In a proceeding supplemental to execution; held, that the court exceeded its jurisdiction, first, in adjudicating the rights of parties who were not parties to the action; second, in determining issues of fact respecting property rights and bona fides of transactions of various persons without pleading [C. L. the issues being joined; and third, that in supplemental proceedings it is a gross perversion of the statute to hold that a court can exercise all the powers of a court of equity, and pass upon questions of fact, the determination of which is within the province of a jury. Wallace, Smuin & Co. v. McLaughlin, 12 U. 411; 43 P. 109. 3277. Court may authorize action against third party. Restraining order. If it appears that a person or corporation, alleged to have property of the judgment debtor or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation, for the recovery of such interest or debt; and the court or judge may, by order, forbid a transfer, or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the judge granting the same or the court in which the action is brought, at any time, upon such terms as may be just. [C. L. § 3458. Cal. C. Civ. P. ¿ 720. Garnishment after judgment. Procedure, 3112. 3278. Disobedience of order of referee a contempt. If any person, party, or witness disobeys an order of the referee, properly made, in the proceedings before him under this chapter, he may be punished by the court or judge ordering the reference, for a contempt. [C. L. § 3459. Cal. C. Civ. P. ? 721. Punishment of contempt in such cases,? 3372. 3279. Duty of court when conveyance not executed as ordered. When the judgment requires the person against whom it is rendered to execute and deliver to any other person, a conveyance of any specific real property, and the person against whom it is rendered, shall refuse or neglect to execute and deliver said conveyance for five days after the service upon him of a certified copy of such judgment, or if he is absent or concealed, so that service of such certified copy cannot be had, upon proof satisfactory to the court, that such service has been made, or that it cannot be made by reason of such absence or concealment, the person entitled to the conveyance may obtain from the court an order that the certified copy of the judgment, together with the order, be recorded by the recorder of deeds of the county where the real property is situated; and when recorded, it shall give to the person entitled to such conveyance a right to the possession of the real property described in the judgment, and to hold the same according to the terms of the conveyance ordered, in like manner as if it had been conveyed in pursuance of the judgment. The recording of any judgment as above provided shall not prevent the court rendering such judgment from enforcing the same by any proper process, according to the course of proceedings therein. [C. L. § 3459. 3280. No person excused from answering on the ground of fraud, etc. A party or witness examined in proceedings authorized by this chapter is not excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud, or to prove that he has been a party or privy to, or has knowledge of, a conveyance, assignment, transfer, or other disposition of property for any purpose, or that he or any other person claims to be entitled, as against the judgment creditor, or a receiver appointed or to be appointed in the proceedings, to hold property derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor, or to a person in his behalf. But an answer cannot be used as evidence against the person so answering in a criminal action or criminal proceeding. Mont. Civ. P. 1268. 3281. Receiver for property of judgment debtor. Order to be recorded. The court may appoint a receiver of the property of the judgment debtor, not exempt from execution, and forbid a transfer or other disposition thereof or interference therewith until its further order therein. But before such receiver shall be vested with the real property of the judgment debtor, a certified copy of the order of appointment shall be filed and recorded in the office of the County in which any real estate sought to be affected by such order is situated. Minn. (1894) ? 5492*; N. Dak. (1895) ?? 5568*-9*. Receivers generally, ?? 3114-3119. CHAPTER 43. EXCEPTIONS. 3282. Exception defined. Taken when decision made. An exception is an objection upon a matter of law to the decision made by a court, judge, referee, or other judicial officer, in an action or proceeding. The exception must be taken at the time the decision is made, except as provided in the next section. [C. L. § 3391*. Cal. C. Civ. P. 646. EXCEPTIONS WAIVED. Exception not taken at time is waived, and cannot be urged on appeal. McGrath v. Tallent, 7 U. 256; 26 P. 574. Reece v. Knott, 3 U. 451; 24 P. 757. Naylor v. Salt Lake City, 9 U. 491; 35 P. 509. Specific exceptions to parts of charge objected to should be taken when it is given and before verdict, so that trial court may have opportunity to correct errors, if any. This rule cannot be waived by stipulation of counsel, though with consent of trial court. Farr v. Swigart, 13 U. 150; 44 P. 711. Ruffatti v. Lexington M'g. Co., 10 U. 386: 37 P. 591. The failure to object to proof of special damages under an allegation of general damages, is a waiver of the objection. Lashus v. Chamberlain, 6 U. 335; 24 P. 188. Objection that commissioner before whom case was tried had a partner practicing in the district is waived if not made at trial. Kaysen v. Steele, 13 U. 260; 44 P. 1042. 3283. What deemed excepted to. The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex parte appli cation; and an order or have been excepted to. decision made in the absence of a party-are deemed to [C. L. § 3392. Cal. C. Civ. P. 647. alleged is apparent on the record. Young v. Martin, 75 U. S. 354. 3284. Form of exception not material. Particulars specified, when. Evidence to explain. No particular form of exception is required, but when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the stenographer's notes of the evidence shall be stated. Documents on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto, sufficient to identify them, may be made. [C. L. § 3393. Cal. C. Civ. P. 2648. TOO GENERAL. Exception to charge as given and refusal to charge as requested, is too general where some requests were objectionable. Marks v. Tompkins, 7 U. 421; 27 P. 6. Where no exception taken either to charge given or refusal of requests, no error can be assigned thereon. Hadra v. Utah Nat'l Bank, 9 U. 412; 35 P. 508. An exception to each paragraph of a charge is too general, and will not be considered on appeal if any portion of the charge is correct. Scoville v. Salt Lake City, 11 U. 60; 39 P. 481. General exceptions to the admission of evidence are not available either on motion for a new trial or on appeal; the particular grounds must be stated. Culmer v. Clift, 14 U. 286; 47 P. 85. An assignment that "the court erred in its finding of facts" intended as a specification of the insufficiency of the evidence, is not a compliance with subdivision 3 of section 3402, C. L. 1888. Mader v. Taylor, Romney, Armstrong Co., — U. —; 49 P. 255. 3285. Exception disregarded unless substantial right prejudiced. No exception shall be regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting. Kansas (1889) 2 4399. disregarded, 3008. Liberal construction of statErrors and defects not affecting substantial rights utes, pleadings, and proceedings, 22 2489, 2986. 3286. Preparation, settlement, and signing of bill of exceptions. Time allowed. When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment if the action were tried with a jury, or after receiving notice of the entry of judgment if the action were tried without a jury, or after the determination of a motion for a new trial, prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken upon which the party relies. Within ten days after such service the adverse party may propose amendments thereto, and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk he must immediately deliver them to the judge, if he be in the county; if he be absent from the county and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing from such party, immediately forward them by mail or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his return to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. At the time designated the judge must settle the bill. If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the judge for settlement, without notice to the adverse party. It is the duty of the judge, in settling the bill, to strike out of it all redundant and useless matter, so that the exceptions may be presented as briefly as possible. When settled, the bill must be signed by the judge, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk. A bill of exceptions shall in all cases be prepared, settled, signed, and filed within ninety days after the entry of judgment, or after notice of the same if the action were tried without a jury, or after the determination of a motion for a new trial. [C. L. § 3395*. Cal. C. Civ. P. 2 650*. Time to prepare bills of exception, etc., may be extended, 3329. Bill of exceptions must be served within time unless an extension given. Willard City v. Woodland, 7 U. 192; 26 P. 284. Application for stay of proceedings to prepare and file motion and statement on motion for new trial, is not waiver of notice of decision required hereby. Burlock v. Shupe, 5 U. 428; 17 P. 19. Trial court has discretion to allow amendments by adding specifications of error to statement. Gill v. Hecht, 13 U. 5; 43 P. 626. Affidavits used on motion for new trial not incorporated into a statement or bill of exceptions cannot be considered on appeal. Nelson v. Brixen, 7 U. 454; 27 P. 578. Perego v. Dodge, 9 U. 3; 33 P. 221. Affirmed, 163 U. S. 160. Evidence will not be reviewed unless brought up by statement on motion for new trial. Snell v. Cisler, 1 U. 298. Spencer v. Van Cott, 2 U. 337. Gilberson v. Miller M. & S. Co., 4 U. 46; 5 P. 699. 3287. Exception may be settled, signed, and filed at time of decision. An exception to any decision may be presented to the court or judge or judicial officer or referee for settlement at the time the decision is made, and after having been settled shall be signed by the judge, judicial officer, or referee, and filed with the clerk. [C. L. § 3394*. Cal. C. Civ. P. 2 649*. 3288. Exception to decision after judgment. Settlement. Exceptions to any decision made after judgment may be presented to the judge at the time of such decision, and be settled or noted as provided in section thirty-two hundred and eighty-seven, and a bill thereof may be presented and settled afterward, as provided in section thirty-two hundred and eighty-six, and within like periods after the entry of the order, upon appeal from which such decision shall be reviewable. [C. L. § 3396. Cal. C. Civ. P. 2 651. 3289. Exception refused. Petition to supreme court for allowance. If the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same. The application may be made in the mode and manner and under such regulations as that court may prescribe; and the bill, when proven, must be certified by a justice thereof as correct, and filed with the clerk of the court in which the action was tried, and when so filed, it has the same force and effect as if settled by the judge who tried the cause. [C. L. § 3397. Cal. C. Civ. P. 2 652. In a case where the court granted a new trial on its own motion, and a contest arose over the settle ment of a bill of exceptions, the supreme court on appeal refused to settle the same. Cache County v. Kiesel, 9 U. 373; 36 P. 633. 3290. Settlement of bill by referee. Settlement after death, removal, etc., by judge or officer. When the decision excepted to was made by a referee or any judicial officer other than a judge, the bill of exceptions shall be presented to such referee or judicial officer, and be settled and signed by him in the same manner as it is required to be presented to, settled, and signed by a court or judge. A judge, referee, or judicial officer may settle and sign a bill of exceptions after as well as before he ceases to be such judge, referee, or judicial officer. If such judge, referee, or judicial officer before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the supreme court may, by its orders or rules, direct. [C. L. § 3398. Cal. C. Civ. P. ? 653*. Referee should settle statement on motion for new trial of cause tried by him. Doane v. Clinton, 2 U. 417. CHAPTER 44. NEW TRIALS. 3291. New trial defined. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, judicial officer, or referees. Cal. C. Civ. P. ? 656. [C. L. § 3399. Order granting new trial will not be reversed except for manifest error or clear abuse of discretion. Davis v. Utah Sou. Ry. Co., 3 U. 218; 2 P. 521. Bate v. Am. Fork, 7 U. 189; 26 P. 296. White v. U. P. Ry. Co., 8 U. 56; 29 P. 1030. Tousey v. Etzel, 9 U. 329; 34 P. 291. 3292. Grounds for new trial. The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury, and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any questions submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. 4. 5. Excessive damages, appearing to have been given under the influence of passion or prejudice. 6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law. 7. Error in law occurring at the trial, and excepted to by the party making the application. [C. L. § 3400. Cal. C. Civ. P. 2 657. Motion for new trial in garnishment proceedings, 3113. Exceptions to instructions given or refused, 3151. MISCONDUCT OF JURY. A conversation had with a juror, pending a trial, which does not tend to influence his mind, or involve any of the material issues, is not sufficient ground for a new trial. A verdict will not be set aside on the ground that strangers to the suit have interfered with the jury when it appears that such interference was unattended with corruption, and was not prompted by a party to the action. Tiernan v. Trewick, 2 U. 393. Affidavits of jurors will not be received to show misconduct except resort to chance. Homer v. Inter-Mountain Abs. Co., 9 U. 193; 33 P. 700. People v. Ritchie, 12 U. 180; 42 P. 209. Where a case has been heard by a referee, the court may, upon motion for a new trial for exceptions taken, hear either, or may require the motion or exceptions to be submitted to the referee, but such submission will not deprive either party of the right to have such motion or exceptions decided by the court. Wasatch Mining Co. v. Jennings, 14 U. 221; 46 P. 1106. ACCIDENT OR SURPRISE. Production of pertinent, relevant testimony, no trick or artifice having been perpetrated, is not surprise hereunder. Snell v. Cisler, 1 U. 298. Where a cause is called for trial in its regular order, the absence of the defendant's counsel from the court is no ground for a new trial. Crompton v. Crow, 2 U. 245. A new trial will not be granted on the ground of accident and surprise to a party, who, by the exercise of ordinary diligence, might have avoided the effects of what he complained of as the grounds of surprise. Stewart Mining Co. v. Coulter, 3 U. 174; 5 P. 557. The affidavits in this case held not to have made such a case or accident and surprise as entitled the defendant to a new trial. Id. Affidavits for new trial upon the ground of surprise must be made by the attorney and not by the defeated party, and should show that the facts from which the surprise resulted were material and that the verdict is mainly attributable to them. Martin v. Hill, 3 U. 157; 2 P. 62. NEWLY DISCOVERED EVIDENCE. New trial will not be granted for newly discovered evidence which is merely cumulative or immaterial and irrelevant. Foster v. Reich, 1 U. 192. People v. Lyman, 2 U. 30. U. S. v. Eldredge, 5 U. 161; 13 P. 673. Long v. Citizens' Bank, 8 U. 104; 29 P. 876. A new trial should not be granted upon the ground of newly discovered evidence where no proper diligence had been used to procure it at the trial. Snell v. Cisler, 1 U. 298. Tiernan v. Trewick, 2 U. 393. Where newly discovered evidence would not be decisive of the case upon another trial, the judg ment will not be reversed. Turner v. Stevens, 3 U. 75; 30 P. 24. Tiernan v. Trewick, 2 U. 393. Baumgarten v. Hoffman, 9 U. 338; 34 P. 294. Wimmer v. Simon, 9 U. 378; 35 P. 507. Affidavit of newly discovered evidence must show that it can be produced on a new trial. Heath v. White, 3 U. 474; 24 P. 762. |