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TITLE X.

CHAPTER I.

PROCEEDINGS AGAINST JOINT DEBTORS.

Sec. 420. Parties not summoned in action on joint contract may be summoned after judgment.

Sec. 421. Summons, in that case, what to contain and how served.
Sec. 422. Affidavit to accompany summons.

Sec. 423. Answer- when filed and what it may contain.
Sec. 424. What will constitute the pleadings in the case.
Sec. 425. Issues—how tried, and verdict—what to be.

Section 420. When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation by proceeding as provided in section forty-two, those who were not originally served with the summons, and did not appear to 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.

Sec. 421. The summons as provided in the last section shall describe the judgment and require the person summoned to show cause why he should not be bound by it, and shall be served in the same manner and returnable within the same time as the original summons. It shall not be necessary to file a new complaint.

Sec. 422. The summons shall be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment or some part thereof remains unsatisfied, and shall specify the amount due thereon.

Sec. 423. Upon such summons the defendant may answer within the time specified therein, denying the judgment or setting up any defence 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.

Sec. 424. If the defendant in his answer deny the judgment or set up any defence which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, shall con

stitute 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, shall constitute such written allegations.

Sec. 425. The issues formed may be tried as in other cases; but when the defendant denies in his answer, any liability on the obligations upon which the judgment was rendered, if a verdict be found against him, it shall be for the amount remaining unsatisfied on such original judgment with interest thereon.

CHAPTER II.

CONFESSION OF JUDGMENT WITHOUT ACTION.

Sec. 426. Judgment may be confessed for debt due or contingent liability.

Sec. 427. Statement in writing and form thereof.

Sec. 428. Filing statement and entering judgment.

Section 426. A judgment by confession may be entered without action, either for money due or to become due; or to secure any person against contingent liability on behalf of the defendant or both, in the manner prescribed by this chapter.

Sec. 427. A statement in writing shall be made and signed by the defendant, and verified by his oath, to the following effect: First. It shall authorize the entry of judgment for a specified sum. Second. If it be for money due or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due or to become due. Third. If it be for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same.

Sec. 428. The statement shall be filed with the clerk of the court in which the judgment is to be entered, who shall endorse upon it and enter in the judgment book a judgment of such court for the amount confessed, with costs. The statement and affidavit with the judgment endorsed shall thereupon become the judgment roll.

CHAPTER III.

SUBMITTING A CONTROVERSY WITHOUT ACTION.

Sec. 429. Controversy-how submitted without action. Sec. 430. Judgment on, as in other cases, but without costs prior to notice of trial.

Sec. 431. Judgment may be enforced or appealed from, as in

an action.

Section 429. Parties to a question in difference which might be the subject of a civil action, may without action agree upon a case containing the facts upon which the controversy depends and present a submission of the same to any court which should have jurisdiction, if an action had been brought; but it must appear by affidavit that the controversy is real and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case and render judgment thereon, as if an action were depending.

Sec. 430. Judgment shall be entered in the judgment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment shall constitute the judgment roll.

Sec. 431. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be in the same manner subject to appeal.

CHAPTER IV.

OF ARBITRATIONS.

Sec. 432. Who may submit controversy to arbitration and exceptions.

Sec. 433. Submission to arbitration shall be in writing.

Sec. 434. Submission may be entered as an order of court; revo

cation.

Sec. 435. Powers of arbitrators.

Sec. 436. Majority of arbitrators may determine any question; they shall be sworn.

Sec. 437. Award to be in writing; when judgment to be entered. Sec. 438. Award may be vacated in certain cases.

Sec. 439. Court may, on motion, modify or correct the award.

Sec. 440. Decision on the motion subject to appeal, but not the judgment entered before motion.

Sec. 441. If submission be revoked and an action be brought, what to be recovered.

Sec. 432. Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.

Sec. 433. The submission to arbitration shall be in writing and may be to one or more persons.

Sec. 434. It may be stipulated in the submission that it be entered as an order of probate court or of the district court, for which purpose it shall be filed with the clerk of the court. The clerk shall thereupon enter into his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award shall be made. When so entered the submission shall not be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission be not made an order of the court, it may be revoked at any time before the award is made.

Sec. 435. Arbitrators shall have power to appoint a time and place for hearing; to adjourn from time to time; to administer oaths to witnesses; to hear the allegations and evidence of the parties, and to make an award thereon.

Sec. 436. All the arbitrators shall meet and act together during the investigation; but when met, a majority may determine any question. Before acting they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matter in controversy, and to make a just award according to their understanding.

Sec. 437. The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the submission is made an order of the court, the award shall be filed with the clerk, and a note thereot made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the clerk in the judgment book, and shall thereupon have the effect of a judgment.

Sec. 438. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, at its discretion: First. That it was procured by corruption or fraud. Second. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing or refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced. Third. That the arbitrators exceeded their powers in making their award; or that they refused or improperly omitted to consider a part of the matter submitted to them; or that the award is indefinite, or cannot be performed.

Sec. 439. The court may, on motion, modify or correct the award where it appears: First. That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein. Second. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matters submitted. Third. When the award, though imperfect in form, could have been amended if it had been a verdict or the imperfection disregarded.

Sec. 440. The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before motion is made, shall not be subject to appeal.

Sec. 441. If a submission to arbitration be revoked and an action be, brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.

CHAPTER V.

OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR PART OF AN ACTION.

Section 442. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer and give notice thereof within five days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer.

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