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FORM No. 1133—Order revoking letters testamentary.

(Title of court and cause.]

The court having heard the testimony produced at the trial upon the issues made by the petition of T. M., widow of said deceased, for the revocation of the letters testamentary heretofore issued to X. Y., and the answer (or return) of the said X. Y. thereto, and the matter having been submitted to the court, after argument, for decision, and the court having made and filed its findings of fact and conclusions of law; it is now by the court, in accordance with said findings of fact and conclusions of law:

Ordered, adjudged, and decreed, that said letters testamentary heretofore issued to said X. Y., as executor of the last will of L. M., deceased, be and the same are hereby revoked. (Date.]

S. T., Judge.

§ 483.

ANNOTATIONS.-Notices, motions, and orders. 1, 2. "Motion" defined.-Not a pleading.

3. Petition as motion.
4. Order to show cause as motion.
5. Motion distinguished from notice.

6. Leave to renew motion.
7, 8. Motion as remedy to set aside judgment procured by fraud.

9. Motion granted on one of many grounds.

10. "Order" defined.
11, 12. Interlocutory decree as an order.

13. Judgment, so-called, as an order.
14. Amending record by nunc pro tunc order.

1. "Motion" defined.--A motion is an application for an order or direction of the court not included in the judgment: Estate of Harrington, 147 Cal. 124, 128, 81 Pac. 546. And see Williams v. Hawley, 144 Cal. 97, 77 Pac. 762, citing the California code definition, that a motion is an application for an order (1003, Cal. C. C. P.).

2. A motion is not a pleading within the meaning of that term: Graft V. Dougherty, 139 Mo. App. 56, 120 . W. 661, 663.

3. Petition as motion.--A petition to a court of equity for an order directing the payment of moneys in the hands of a receiver is a motion. It is of no consequence whether the verified statement of the petitioner be termed a complaint, a petition in the nature of a complaint, or an affidavit: California Title Ins. etc. Co. v. Consolidated P. C. Co., 117 Cal. 237, 240, 49 Pac, 1.

4. Order to show cause as motion.An order to show cause returnable at a specified time less than that prescribed by statute is the equivalent of a motion and order shortening time for the hearing thereof: Dabman v. White, 48 Cal. 439, 451.

5. Motion distinguished from notice.-A notice of motion is distinct from the motion itself. Notice alone is not sufficient on appeal to show the making of a motion: Herrlich v. McDonald, 80 Cal. 472, 474, 22 Pac. 299.

6. Leave to renew a motion once denied lies in the discretion of the court: Mace v. O'Reilly, 70 Cal. 231, 11 Pac. 721.

7. Motion as remedy to set aside a judgment procured by fraud.-A motion predicated in part upon equitable grounds which would no doubt support a bill in equity on the ground of fraud perpetrated in the act of procuring a

judgment is proper to secure relief to set aside such judgment. The ancient right founded on the grounds coram nobis is superseded in our practice by the modern motion to the same effect: Graft v. Dougherty, 139 Mo. App. 56, 120 S. W. 661, 662, citing Downing v. Still, 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672; Fisher v. Fisher, 114 Mo. App. 627, 90 S. W. 413.

8. Where a motion is made to set aside a judgment rendered against a defendant in his absence, and no defense other than that stated in the answer is presented, the question thereupon rests on the sufficiency of such answer, and where this is insufficient, the judgment is proper, and the motion to set it aside will therefore be denied: Plunkett V. State National Bank, 90 Ark. 86, 117 S. W. 1079, 1080. 9. Motion granted on one of

many grounds.-Where the granting of an order is proper upon any of the statutory grounds, the court may grant the motion on one of the grounds stated, and may disregard other grounds: Toy V. Haskell, 128 Cal. 558, 561, 61 Pac. 89, 79 Am. St. Rep. 70.

10. “Order" defined.-An order is a decision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of practice, or some question collateral to the main issue presented by the pleadings

and necessary to be disposed of before such issue be passed upon by the court, or necessary to be determined in carrying into execution the final judgment: Loring v. Illsley, 1 Cal. 24, 27; Estate of Rose, 80 Cal. 166, 170, 22 Pac. 86; Estate of Smith, 98 Cal. 636, 640, 33 Pac. 744.

11. An interlocutory decree is an order, and not a judgment, in so far that, except where expressly provided by statute, an appeal will not lie; but it may be reviewed on an appeal from the judgment: Watson v. Sutro, 77 Cal. 609, 611, 20 Pac. 88.

12. An interlocutory decree in probate settling an administrator's accounts is not a final judgment, but a mere order: Estate of Rose, 80 Cal. 166, 169, 23 Pae.

86.

13. Judgment, so-called, as an order.The judgment of a court refusing to admit a will to probate is not a final judgment, but an order of court: Estate of Smith, 98 Cal. 166, 638, 33 Pac. 744.

14. Amending record by nunc pro tunc order.-The authority of court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak, but ought to have spoken: Tucker v. Hawkins, 72 Ark. 21. 77 S. W'. 902; Liddell v. Landan, 87 Ark. 438, 112 S. W. 1085; Boulden v. Jennings (Ark.), 122 S. W. 639, 641.

CHAPTER CXXXVII.

Affidavits, Depositions, and Stipulations.

Page 1837

1837 1837

1838

$ 484. Affidavits.
Form No. 1134. Affidavit of service of notice on a person not

an attorney.
Form No. 1135. Afidavit of service of notice by mail....
Form No. 1136. Affidavit of service of notice on an attorney

absent from his office......
Form No. 1137. Affidavit of service of notice on an attorney at

his residence when his office is closed.....
Form No. 1138. Affidavit of service of notice on an attorney at

office in charge of a clerk or other person.. Form No. 1139. Affidavit of service of summons on several

defendants. (Endorsed on original sum

mons.) :
Form No. 1140. Affidavit of service of citation...

1838

1839

1839 1840

$ 485. Depositions .

1840 Form No. 1141. Stipulation of counsel to take depositions.... 1840 Form No. 1142. Affidavit upon taking deposition of defendant as witness for plaintiff.....

1841 Form No. 1143. Affidavit for taking the deposition of a resident witness.

1841 Form No. 1144. Affidavit and application for commission for

the taking of the deposition of a non-resi.
dent witness

1842 Form No. 1145. Notice of taking of deposition...

1842 Form No. 1146. Commission to take deposition of witness. 1843 Form No. 1147. Instructions to commissioner....

1843 Form No. 1148. Deposition of witness. (To be annexed to the commission.)

1846 $ 486. Stipulations .

1847 Form No. 1149. Waiver of answer

1847 Form No. 1150. Stipulation to transfer cause to another department ..

1847 Form No. 1151. Stipulation to dismiss appeal.

1848 Form No. 1152. Stipulation as to facts

1848 Form No. 1153. Stipulation to restore and file original complaint destroyed by fire.

1849 $ 487. Annotations .

1849

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& 484. AFFIDAVITS. FORM No. 1134—Affidavit of service of notice on a person not an attorney. [Venue.)

being duly sworn, says: That he served the notice (or other paper, naming it), of which the annexed is a true copy, on (naming the person served] on the day of

19 by delivering said notice (or other paper, naming it] to said personally, at his residence in the city (or town] of [In case of a notice, service is generally required by statute to be made upon the attorney, hence the affiant should add, where service of notice is made, the reasons why service could not be made on the attorney.)

[Signature.] [Jurat.]

.

FORM No. 1135—Affidavit of service of notice by mail. (Venue.]

being duly sworn, says: That he is the attorney for the plaintiff (or defendant] in the action entitled in the notice, of which the annexed is a true copy; that he served said notice on the

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attorney for the defendant (or plaintiff] in said action, on the day of

19 by depositing said notice on said day of in the post-office at the city (or town] of in the state of

enclosed in a sealed envelope, directed to said attorney for defendant (or plaintiff], at his address, to wit, No. Street, city of

state of which city (or town of was then the place of residence of said

;

that affiant prepaid the postage thereon; that there was then, and has been ever since, a regular communication by mail between said cities (or towns]; that said attorney for defendant (or plaintiff] had no office in said city of at that time.

(Signature.) [Jurat.]

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FORM No. 1136–Affidavit of service of notice on an attorney absent from

his office. (Venue.]

being duly sworn, deposes and says: That he is the attor. ney for the plaintiff [or defendant) in the action entitled in the notice, of which the annexed is a true copy; that he served said notice on the attorney for defendant (or plaintiff in said action, by leaving the same in the office of said

No. Street, in the city of in this state, on the day of 19 at or about the hour of M. of said day (observing the statute as to service required to be made during business hours), and in a conspicuous place on the desk of said , in his said office; that there was no one in charge of the said office at the time of such service.

[Signature.] [Jurat.]

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FORM No. 1137—Affidavit of service of notice on an attorney at his residence

when his office is closed. [Venue.]

being duly sworn, says: That he is the attorney for the plaintiff (or defendant) in the action entitled in the notice, of which the annexed is a copy; that affiant served said notice on

, the attorney of the defendant (or plaintiff) named in said action in the city (or town] of in this state, on the

day of

19,by leaving said notice at the residence of said in said city (or

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town of

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who was then over years of age, and was and is a person of discretion, and who resided at the said residence of said at the time of said service; that the office of said

was not open at the time said service was made; and that said office was then in the county in which his said residence was situated.

[Signature.) (Jurat.)

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FORM No. 1138—Affidavit of service of notice on an attorney at office in

charge of a clerk or other person. (Venue.]

being duly sworn, says: That he is the attorney for the plaintiff (or defendant) in the action entitled in the notice, of which the annexed is a true copy; that he served said notice on the attorney for the defendant (or plaintiff) named in said action, by delivering the same to [here naming the clerk or other person in charge] in the office of said who at the time of such service was the clerk (or had charge of said office] of said ; that the said attorney for the defendant (or plaintiff) was absent from his said office at the time of said service.

[Signature.] (Jurat.)

FORM No. 1139—Affidavit of service of summons on several defendants.

(Endorsed on original summons.) State of

SS. County of

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being duly sworn, deposes and says: That he is, and was at the time of the service of the summons herein referred to, a citizen of the United States, over the age of eighteen years, and not a party to the within-entitled action; that he personally served the within summons on the hereinafter-named defendants, whom deponent knew to be the persons named in the summons, by delivering to and leaving with each of said defendants personally, at the places hereinafter set forth, in the state of and at the time set opposite their respective names, a copy of said summons attached to a copy of the complaint referred to in said summons.

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