the judgment of the court committing the error. A judginent upon such a motion is within itself a final judgment, from which an appeal will lie. A trial court will not be compelled by mandate where the remedy is open by way of appeal from an order overruling the motion to vacate a judgment of dismissal, voidable only: State v. Riley, 219 Mo. 667, 118 S. W. 647, 656. 20. Motion to vacate a judgment, charging the fact of death, and supported by proof, takes the place of the common-law writ of error coram nobis: State v. Riley, 219 Mo. 667, 118 S. W. 647, 651. 21. Judgment upon the pleadings.-As a general proposition, a motion for judgment on the pleadings, based on the facts thereby established, can not be sustained except where, upon such facts, a judgment different from that pronounced could not be rendered, notwithstanding any evidence which might be produced; or, in other words, such a motion can not be sustained unless, under the admitted facts, the moving party is entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined. Therefore, in determining the rights of the defendant to the judgment given him, the real question to determine is the sufficiency of the admitted facts to warrant the judgment rendered and the materiality of those on which issue was joined. A motion for judgment on the pleadings can not prevail unless, on facts thereby established, the court, as a matter of law, can pronounce a judgment on the merits; that is, determine the rights of the parties to the subject-matter of the controversy, and render a judgment in relation thereto which is final between the parties. Such a motion can not, under the guise of a motion for judgment on the pleadings, be substituted for some other plea: Mills v. Hart, 21 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241, citing Rice v. Bush, 16 Colo. 484, 27 Pac. 720; Harris v. Harris, 9 Colo. App. 211, 47 Pac. 841, approved in Hoover v. Horn, 45 Colo. 288, 101 Pac. 55, 56, and in Roberts v. Colorado Springs etc. R. Co., 45 Colo. 188, 101 Pac. 59, 61. 22. Motion not substitute for demurrer.-A motion for judgment upon the pleadings can not be made to take the place of a demurrer or other plea: Roberts v. Colorado Springs etc. R. Co., 45 Colo. 188, 101 Pac. 59, 61; Shuler v. Allan, 45 Colo. 372, 101 Pac. 350, 352. 23. A motion for judgment on the pleadings can not be converted into a general demurrer: Schuler v. Allan, 45 Colo. 372, 101 Pac. 350, 352, citing Harris v. Harris. 9 Colo. App. 211, 47 Pac. 841; Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241; Rice v. Bush, 16 Colo. 484, 27 Pac. 720; Cornett v. Smith, 15 Colo. App. 53, 60 Pac. 953; Hoover v. Horn, 45 Colo. 288, 101 Pac. 55. 24. Motion admits truth of pleas.-A motion for judgment upon the pleadings admits that the statements in the pleas are true: Roberts v. Colorado Springs etc. R. Co., 45 Colo. 188, 101 Pac. 59, 61. 25. When a party moves for judgment on the pleadings, he not only, for the purpose of his motion, admits the truth of all the allegations of his adversary, but also must be deemed to adopt all his adversaries' denials: Phenix v. Bijelich, 30 Nev. 257, 95 Pac. 351, 353, citing Walling v. Bown, 9 Idaho 184, 72 Pac. 960; Idaho P. M. Co. v. Green, 14 Idaho 294, Pac. 161, 164. 26. Motion proper when denials are only of conclusions.—A judgment on the pleadings is proper where the denials in the answer are only of conclusions, and not of the facts constituting the plaintiff's cause of action. Denials which relate only to the effect of such facts are immaterial: Thompson v. Colvin, 53 Ore. 488, 101 Pac. 201, 202, citing Bump v. Cooper, 20 Ore. 527, 26 Pac. 848. 27. Relation of inconsistent defenses to the motion.-On a motion for judgment on the pleadings, inconsistent defenses can not be regarded as vitiating one another; but if a good defense is stated in the answer, it must be considered as true: Hoover v. Horn, 45 Colo. 288, 101 Pac. 55, 56. on 28. Arizona practice. Judgment the pleading is a practice recognized by the courts of Arizona: Randall v. Fox (Ariz.), 108 Pac. 249, 250, citing Miles v. McCallan, 1 Ariz. 491, 3 Pac. 610; Finley v. City of Tucson, 7 Ariz. 108, 60 Pac. 872. 29. Waiver of motion.-A motion for judgment on the pleadings is held to be waived by the defendant where he goes to trial on the merits: Sundmacher v. Lloyd, 135 Mo. App. 517, 116 S. W. 12, 13. Form No. 1199. Notice requiring security for costs..... .... Page 1886 1886 ..... 1887 1887 1887 Form No. 1201. Memorandum of costs and disbursements on Form No. 1202. Verification of the foregoing..... .... 1888 Form No. 1206. Sheriff's return of execution unsatisfied. (An- 1890 ...... 1890 1891 Form No. 1207. Sheriff's return of execution unsatisfied.- Form No. 1208. Writ of execution for fees and costs..... Form No. 1210. Writ of execution for deficiency on fore Form No. 1211. Execution against real or personal property Form No. 1212. Execution upon writ of restitution. 1892 1893 1894 1895 Form No. 1213. Writ of execution after remittitur filed....... § 499. Elements of petition for an order requiring debtor of a judgment debtor to appear and answer. FORM No. 1199-Notice requiring security for costs. [Title of court and cause.] To A. B., Attorney for plaintiff : Please take notice, that the defendant hereby demands and requires security from E. F., plaintiff, who is a non-resident of this state [or is a foreign corporation], for defendant's costs and charges in this action which may be awarded herein against the plaintiff. [Date.] C. D., Attorney for defendant. FORM No. 1200-Notice of motion to stay proceedings until security for costs be given. [Title of court and cause.] To A. B., Attorney for plaintiff: day of 19 at Please take notice, that defendant will move said court at the courtroom thereof on the o'clock M., or as soon thereafter as counsel can be heard, for an order staying proceedings in this action until plaintiff give security to defendant for his costs and charges which may be awarded to him in the action. Said motion will be based on the complaint in the action, and on an affidavit, a copy of which is herewith served, and will be made on the ground that plaintiff is a non-resident of this state [or is a foreign corporation]. [Date.] C. D., Attorney for defendant. FORM No. 1201-Memorandum of costs and disbursements on part of plaintiff [or defendant]. [Title of court and cause.] Sheriff's fees Clerk's fees.. Disbursements. .$ Witnesses' fees [here naming the witnesses and designating days of service].......... $ , being duly sworn, deposes and says: That he, is the attorney for the plaintiff [or defendant] in the above-entitled action, and, as such, is better informed relative to the above costs and disbursements than the plaintiff [or defendant]; that the items in the above memorandum contained are correct, to the best of this depon ent's knowledge and belief, and the said disbursements have been necessarily incurred in said action. [Jurat of notary or clerk.] [Signature of affiant.] FORM No. 1203-Acknowledgment of service of a copy of memorandum of costs. (Endorsed upon memorandum of costs.) Due service of a copy of the within memorandum of costs is hereby admitted this day of [Endorsement of filing.] 19 " A. B., Attorney for § 498. WRITS OF EXECUTION, ASSISTANCE, ETC. FORM No. 1204-Writ of execution on judgment. [Title of court and cause.] The people of the state of to the sheriff of the county of the date of said judgment, with interest on said sum at the rate of from date of said judgment until paid, as per cent per appears to us of record; And whereas, the judgment-roll in the action in which said judg ment was entered is filed in the clerk's office of said court in the county of and the said judgment was docketed in said clerk's county, on the day and year first above written; and as aforesaid, is at the date of this writ actually due on said judgment, together with the interest thereon as aforesaid, and $ for this and other accruing costs: office in said the sum of $ Now you, the said sheriff, are hereby required to make the said sums due on said judgment for damages and costs, and interest thereon as aforesaid, and accruing costs, to satisfy the said judgment, out of the personal property of the said debtor, ; or, if sufficient personal property of said debtor can not be found, then out of the real property in your county belonging to the said debtor, on the day whereon said judgment was docketed in the aforesaid county, or at any time thereafter, and make return of Attest my hand and the seal of the said court, the day and year last above written. (From the record in Nixon v. Goodwin, 3 Cal. App. 358; 85 Pac. 169.) [Title of court and cause.] The people of the state of California to the sheriff of the county of Placer, greeting: Whereas, on the 5th day of June, 1901, John Dias recovered a judgment in the superior court in and for the county of Placer, state of California, against the Montauk Consolidated Gold Mining Company, a corporation, for the sum of $9,150, with interest at the rate of seven per cent per annum from the date of said judgment till paid, together with $6.75 costs and disbursements at the date of said judgment, and accruing costs of $1, as appears of record; And whereas, the judgment-roll in the action in which said judgment was entered is filed in the clerk's office of said court in the county of Placer; and the said judgment was docketed in said clerk's office in the said county on the day and year first above written; And the sum of $9,157.75, with interest at the rate aforesaid, is now, and at the date of this writ was, actually due on said judg ment: Now you, the said sheriff, are hereby required to pay the said sums due on the said judgment, with interest as aforesaid, and costs and |