FORM No. 1195-Amended judgment for defendant. (In Burkett v. Griffith, 90 Cal. 532; 27 Pac. 527; 25 Am. St. Rep. 151; 13 L. R. A. 707.) [Title of court and cause.] In this action the defendant having appeared and demurred to the plaintiff's complaint herein, and the issue of law thereto arising having been duly submitted to the court by the respective parties plaintiff and defendant, and the court being fully advised in the premises, did heretofore sustain said demurrer, and refused leave to plaintiff to amend his complaint, and the defendant having heretofore applied to the clerk of the court to enter judgment herein, and said clerk having, pursuant to such application, entered a judgment herein against the defendant for the costs in this action, and said clerk having failed to make an entry of judgment with reference to the disposition of the case itself, and the defendant being entitled to a judgment dismissing said action, as well as for costs herein: It is therefore ordered, adjudged, and decreed, that the judgment heretofore entered in said cause be amended so as to read as follows: It is by the court further ordered, adjudged, and decreed, that said action be and the same is hereby dismissed, and that defendant do have and recover from plaintiff his, defendant's, costs and disbursements incurred in this action, amounting to the sum of $5.70. [Date.] Walter Van Dyke, Judge of Superior Court. FORM No. 1196-Order of sheriff's sale of real estate under judgment. to the sheriff of said county, day of 19 recovered a in an action wherein the said was defendant, which said of the said [superior] judgment is recorded in judgment book court, on page and which is in the words and figures following, to wit: [Here copy the judgment which provides for such sale.] are Now, therefore, you, the said sheriff of the county of hereby commanded and required to proceed to give notice for sale, and to sell, the premises hereinbefore described, for gold coin of the United States, and to apply the proceeds of such sale to the satisfaction of said judgment, with the interest thereon and costs, together with your fees, and to make and file your report of such sale to the clerk of the said superior court within days from the date hereof, and to do all things according to the terms and requirements of the said judgment, and the provisions of the statute in such case made and provided. Form of judgment in an action brought by an assignee to determine the rights of the plaintiff in and to a large amount of personal property and notes mortgaged and pledged by his assignor: Mowry v. First Nat. Bank, 54 Wis. 43, 11 N. W. 247. § 495. CONFESSION OF JUDGMENT WITHOUT ACTION. FORM No. 1197-Confession of judgment. [Title of court and cause.] I, John Doe, defendant in the above-entitled action, do hereby confess judgment herein in favor of the plaintiff, Richard Roe, for the sum of $ and I hereby authorize entry of judgment herein for said amount in favor of said plaintiff. I hereby state that said. sum of $ for which judgment is confessed herein, is justly due [or justly to become due] from me to the said Richard Roe, the facts concerning which are as follows: [Here state facts briefly to show that the sum confessed is justly due or to become due.] the confession of judgment be for the purpose of securing the plaintiff against a contingent liability, add: "And I further state that this confession of judgment is for the purpose of securing the plaintiff against a contingent liability, and that the facts thereof are as follows: (Here state concisely the facts constituting such liabil [If ity); and further, that the sum confessed therefor does not exceed the amount of said contingent liability."] [Verification.] [Signature.] FORM No. 1198-Entry of judgment confessed. (Annexed to the foregoing.) [Title of court and cause.] On filing the within and foregoing statement, confession, and verification [or affidavit], wherein judgment is authorized and consented to be entered in favor of plaintiff herein for the sum of $ : It is therefore ordered and adjudged, that the plaintiff do have and recover of and from the defendant herein the sum of $ together with $ [Date.] costs herein. For form of judgment on the pleadings in an action to set aside and vacate a judgment, see Randall v. Fox (Ariz.), 108 Pac. 249, 250. For form of final judgment in an action to recover for injuries alleged to have been sustained by plaintiff while in the defendant's employ, and through defendant's negligence, the same affirmed on appeal, and held not a judgment of nonsuit, see McGuire v. Bryant etc. Co., 53 Wash. 425, 102 Pac. 237, 238. § 496. ANNOTATIONS.-Findings and judgment. 1. Findings.-As to averments not denied. 2, 3. General rule as to findings on separate counts. 4. Finding as to truth of allegations generally. 5. Remedy where findings are imperfect. 6. Verdict.-Defective statement of cause cured by. 7. Presumptions after verdict. 8. On a motion for a directed verdict. 9. Judgment generally.-Definition. 10. Iowa statutes relating to entry of judgment. 11. Irregular entry of decree. 12. Personal judgment not valid against non-resident. 13. Judgment upon issue of law where unliquidated damages are claimed. 14. Joint judgment against defendants guilty of tort. 15. Motion in arrest of judgment. 16. Motion in arrest-When defendant may invoke. 17. Motion in arrest for defect in verdict. 18. A motion for judgment non obstante veredicto. 19. Motion to vacate for error of fact.-Missouri practice. 20. Motion to vacate a judgment, charging the fact of death. 21. Judgment upon the pleadings. 22, 23. Motion not substitute for demurrer. 24, 25. Motion admits truth of pleas. 26. Motion proper when denials are only of conclusions. 27. Relation of inconsistent defenses to the motion. 28. Arizona practice. 29. Waiver of motion. 1. FINDINGS.-As to averments not denied.-Where, in a verified complaint, a material fact is alleged, and the answer fails to deny the same, the truth of such an averment is admitted, and no finding on the subject is necessary: Los Angeles P. B. Co. v. Higgins, 8 Cal. App. 514, 97 Pac. 414, 420. 2. General rule as to findings on separate counts.-As a general rule, where there are several counts in a petition, each stating a different cause of action, there should be a separate finding on each: Cramer v. Barmon, 193 Mo. 329, 91 S. W. 1038; Brownell v. Pacific R. Co., 47 Mo. 239; Clark v. Hannibal etc. R. Co., 36 Mo. 202, 212; Russell v. Railroad Co., 154 Mo. 428, 55 S. W. 454. 3. One finding, however, is sufficient where the several counts relate to the same transaction: Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688; State v. Pitts, 58 Mo. 556; State v. Jennings, 81 Mo. 185, 51 Am. Rep. 236; State v. Bean, 21 Mo. 267; State v. McCue, 39 Mo. 112. 4. Finding as to truth of allegations generally. A finding that all of the allegations in a particular paragraph or pleading are true or untrue is sufficient: Heinrich v. Heinrich, 2 Cal. App. 479, 482, 84 Pac. 326, (by wife against husband, to enforce a trust). See, also, Gale v. Bradbury, 116 Cal. 39, 40, 47 Pac. 778, (for money judgment); Williams v. Hall, 79 Cal. 606, 607, 21 Pac. 965, (upon contract for the payment of money). 5. Remedy where findings are imperfect.-An imperfect verdict or finding, or a neglect to find on all the issues, can be taken advantage of only by motion in arrest of judgment: Wells v. Adams, 88 Mo. App. 215, 228; Grier v. Strother, 111 Mo. App. 386, 85 S. W. 976; Jonesboro etc. R. Co. v. United Iron Works Co., 117 Mo. App. 167, 94 S. W. 726; Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688, 691. 6. VERDICT.-Defective statement of cause cured by.-A defective statement of a cause of action may be good after verdict: H. A. Johnson & Co. v. Springfield Ice etc. Co., 143 Mo. App. 441, 127 S. W. 692. 7. Presumptions after verdict.-Every reasonable presumption and intendment should be indulged from the facts alleged in the petition, after verdict, and in aid thereof: Thomasson v. Mercantile etc. I. Co., 217 Mo. 485, 116 S. W. 1092, 1096. For additional authorities as to the foregoing principle, see chapter VIII, annotation paragraphs 18-21. 8. On a motion for a directed verdict, the court is justified in denying the same if a substantial conflict exists in the evidence on any material issue: Gooler v. Eidness (N. Dak.), 121 N. W. 83, 85. 9. JUDGMENT GENERALLY.-Definition. Primarily, a "judgment," except where the signification of the word has been changed by statute, is the decision pronounced by the court upon the matter contained in the record. Thus it has frequently been held that there is a difference between a judgment and the entry thereof. The rendition of a judgment is a judicial act, and the entry upon the record is purely ministerial. Save for some statute, entry of record is not indispensable to a judgment; but it is just as clear that a judgment is essential to the validity of an entry. Under the old practice, and in the absence of statute, it seems that there was a radical difference between the entries of judgments and decrees. A "judgment" can speak but by the record, while a "decree" takes effect immediately after being pronounced by the court. Its enrolment adds nothing to its force or its competency as evidence: Burke v. Burke, 142 Iowa 206, 119 N. W. 129, 131, citing Freeman on Judgments, 38; Bates v. Delavan, 5 Paige 303; Winans v. Dunham, 5 Wend. 47; Butler v. Lee, 3 Keyes, (42 N. Y.) 73; Lynch v. Rome Co., 42 Barb. 591. 10. lowa statutes relating to entry of Judgment.-A judgment rendered and entered in vacation without consent of the parties or an order of court entered during term time is void. But judgments and decrees ordered and rendered during term time may be entered in vacation: Burke v. Burke, 142 Iowa 206, 119 N. W. 129, citing and construing Iowa code §§ 242, 247, and further citing Traer v. Whitman, 56 Iowa 443, 9 N. W. 339; Smith v. Cumins, 52 Iowa 143, 2 N. W. 1041. 11. Irregular entry of decree.-The remedy is by motion, not by objection made on appeal, where a decree is irregularly entered, inasmuch as that fact does not render the decree void: Burke v. Burke, 142 Iowa 206, 119 N. W. 129, 131, citing to the same effect Collins v. Chantland, 48 Iowa 241; State v. Hen derson, 164 Mo. 347, 64 S .W. 138, 86 Am. St. Rep. 618. 12. Personal judgment is not valid against non-resident.-Even when citation and notice by publication in the mode provided by statute is given to a non-resident defendant who does not appear, no valid personal judgment can be rendered against him. In such case, if the non-resident defendant has property within the territorial jurisdiction of the court, the same may be reached by attachment and proper notice by publication. The court so far acquires jurisdiction of the property, as a proceedings in rem, as to ascertain the obligation of the defendant, and to apply the proceeds of the attached property in satisfaction of the same: Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565, cited in Smith v. Montoya, 3 N. Mex. 40, 1 Pac. 175. 13. Judgment upon Issue of law where unliquidated damages are claimed.-As to whether the demurrer, for its own purpose, admits the amount of damages alleged in the bill arising from the alleged violation of an agreement; held, that the Missouri statute (Rev. Stats. 1899, §§ 774-176, Ann. Stats. 1906, p. 751) contemplates that if judgment be rendered on demurrer, on an issue of law, where the damages can not be ascertained by the written instrument sued on, but remain unliquidated, inquiry should be had into the amount of the damages: Donovan v. Boeck, 217 Mo. 70, 116 S. W. 443, 546, citing Darrah V. Steamboat Lightfoot, 15 Mo. 187; McKenzie v. Mathews, 59 Mo. 99. 14. Joint judgment against defendants guilty of tort.-In actions against two or more persons for a single tort, there can not be two verdicts for different sums against different defendants in the same trial. There can be but one verdict for a single sum against all who are found guilty of the tort. All who are guilty at all are liable for the full amount of the actual damages arising from the injuries inflicted, regardless of the degree of culpability: Marriott v. Williams, 152 Cal. 705, 711, 93 Pac. 875, 125 Am. St. Rep. 87; McCool v. Mahoney, 54 Cal. 491; Nichols v. Dunphy, 58 Cal. 605; Everroad v. Gabbert, 83 Ind. 489; Huddleston v. Borough, 111 Pa. St. 110, 2 Atl. 200. 15. Motion in arrest of judgment.The office of a motion in arrest of judg ment is to direct the attention of the court to errors apparent on the face of the record proper: State v. Goehler, 193 Mo. 177, 181, 91 S. W. 947. 16. Motion in arrest.-When defendant may invoke.-A motion in arrest of judgment is a remedy which the defendant may invoke where the face of the petition shows plaintiff not to have a cause of action; this remedy is the counterpart existing in favor of the defendant of the remedy by motion for judgment non obstante veredicto, which is expressly one allowed to the plaintiff: Shearer v. Guardian Trust Co., 135 Mo. App. 229, 116 S. W. 456, 457. 17. Motion in arrest for defect in verdict. Where no motion in arrest of judgment is made for defect in the verdict, such defect can not be considered as error on appeal: Finney v. State to use, etc., 9 Mo. 635; Stout v. Calver, 6 Mo. 256, 35 Am. Dec. 438; State v. DeWitt, 186 Mo. 61, 68, 84 S. W. 956; Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688, 691, (to condemn right of way for railroad). al 18. A motion for judgment non obstante veredicto is not a motion lowed the defendant in a cause. In point of legal practice, it is a motion which a plaintiff may make where, on account of defendant's answer, he, defendant, is not entitled to a judgment in his favor. It is only proper where, upon the defendant's own showing. in any way of putting it, he can have no merits, nor can the issue joined thereon be found for him. Where the awarding of a repleader can not mend the case, the court for the sake of the plaintiff will at once give judgment non obstante veredicto: Shearer v. Guardian Trust Co., 136 Mo. App. 229, 116 S. W. 456, 457, and authorities cited, including Bellows v. Shannon, 2 Hill (N. Y.) 86; Bradshaw v. Hedge, 10 Iowa 402; Williams v. Anderson, 9 Minn. 50 (Gil. 39); Friendly v. Lee, 20 Ore. 202, 25 Pac. 396; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823. 19. Motion to vacate for error of fact. -Missouri practice. In the state of Missouri, a motion to vacate a judgment for error of fact, and not for patent error of record, supported by evidence dehors the record, takes the place of the common-law writ of error coram nobis, and is in the nature of an indictment and direct attack upon |