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a. Plaintiff recovered judgment for $140, the defendant appealed and claimed that judgment should have been in his favor. On a new trial in the county court plaintiff recovered $68 59 ; held that the plaintiff was entitled to costs of appeal (Wynkoop v. Holbert, 25 How. 158).

6. The plaintiff recovered judgment for $159 50; defendant appealed and stated that judgment at most should have been only for $5; the plaintiff did not offer to allow the judgment to be corrected, and on a new trial in the county court recovered judgment for $130; held that defendant was entitled to costs (Fox v. Nellis, 25 How. 144).

c. The costs to the appellant, on a new trial, do not depend solely on the fact that he has recovered a more favorable judgment, but on the fact whether his notice of appeal was sufficient (Forsyth v. Ferguson, 27 How. 67).

d. Set off of costs against recovery (Evans v. Vance, 2 Barb. 598; Johnson v. Farrell, 10 Abb. 384).

e. Costs on appeal in the marino court (Lewis v. Fox, 11 Abb. 134 ; 281; 19 How. 561 ; 20 How. 96, note).

f. Costs when appeal heard in the supreme court.-Where an appeal from a judgment rendered by a justice of the peace is heard by the supreme court, because of the incompetency of the county judge to hear the appeal, the successful party will recover the same costs as if the appeal had been decided by the county judge (Taylor v. Sceley, 4 How. 314; 3 Code Rep. 84; O Callaghan v. Carroll, 16 How. 327).

g. What sections govern the allowance of costs.—Whether the costs to be awarded to the appellant, on appeals from the marine and district courts, are governed exclusively by sections 354 and 371

of the Code, and whether section 330 also applies thereto, query? (Ellert v. Kelly, 4 E. D. Smith, 12; 10 How. 392)

TITLE XII.

Of the Miscellaneous Proceedings in Civil Actions, and Gen

eral Provisions.

CHAPTER 1. SUBMITTING A CONTROVERSY WITHOUT ACTION.

II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, LEGATEES,

DEVISEES AND TENANTS HOLDING UNDER Á JUDGMENT

DEBTOR.
III. CONFESSION OF JUDGMENT WITHOUT ACTION.
IV. OFFERS OF THE DEFENDANT TO COMPROMISE THE WHOLE

OR A PART OF THE ACTION.
V. ADMISSION OR INSPECTION OF WRITINGS.
VI. EXAMINATION OF PARTIES.
VII. EXAMINATION OF WITNESSES.
VIII. MOTIONS AND ORDERS.
IX. ENTITLING AFFIDAVITS.

X. COMPUTATION OF TIME.
XI. NOTICES, AND FILING AND SERVICE OF PAPERS
XII. DUTIES OF SHERIFFS AND CORONERS.
XIII. ACCOUNTABILITY OF GUARDIANS.
XIV. POWERS OF REFEREES.
XV. MISCELLANEOUS PROVISIONS.

CHAPTER 1.

Submitting a Controversy without Action.

SECTION 372. Controversy, how submitted without action.

373. Judgment, how entered.
374, Judgment, how enforced or appealed from.

$ 372. [325.] Controversy, how submitted without action.

Parties to a question in difference, which might be the subject of a civil action, may, withont action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the pro

ceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.

a. A proceeding under this section is not an action (Lang v. Ropke, 1 Duer, 702). No authority is contained in this section for the submission of actions; it relates solely to the submission of questions of difference without action; and where an action was commenced, and a case, containing the facts upon which the controversy depended, was agreed upon and submitted, it was held that if the action was not thereby discontinued, it must be when a submission is followed by a judgment (Van Sickle v. Van Šickle, 8 How. 265).

6. There is no authority for the appointment of a guardian for an infant, for the purpose of submitting a controversy without action; and an infant cannot consent to such submission (Fisher v. Stilson, 9 Abb. 33).

c. The court can only determine the questions of law that arise upon the facts agreed upon, and has no power to send the cause to a jury for the determination of questions of fact that, upon the face of the submission, may appear to be doubtful. The court must itself construe the submission (Neilson v. Com. Mut. Ins. Co. 3 Duer, 455).

d. On jud nent at general term in favor of defendant, he is not entitled to costs for any proceeding before notice of trial, nor to a fee before argument, nor for argument; but he is entitled to a trial fee (Id. 683).

e. The plaintiff must furnish the necessary papers for argument. Rule 43.

$ 373. [326.) Judgment.

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

$ 374. [327.] Judgment, how enforced or appealed from.

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

CHAPTER II.*

Proceedings against Joint Debtors, Heirs, Devisees, Legatees,

and Tenants holding under a judgment debtor.

SECTION. 375. Parties not summoned in action on joint contract, may be

summoned after judgment. 376. If judgment debtor die, his representatives may be sum

moned.
377. Form of summons.
378. Summons to be accompanied by affidavit of amount due.
379. Party summoned may answer and defend.
380. Subsequent pleadings and proceedings the same as in an

action.
381. Answer and reply to be verified as in an action.

§ 375. [328.] (Am’d 1849.) Parties not summoned in action on joint contract, may be summoned after judgment.

When a judgment shall be recovered against one or more, of several persons jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

a. In a proceeding under this section does the cause of action or right to proceed arise upon judgment or the original demand? (Oakley v. Aspinwall, 4 Coms. 513; Johnson v. Smith, 14 Abb. 423).

b. Where the plaintiff recovers judgment on contract against three out of four joint debtors, the action being against all four, but the summons having been served only on the three against whom the recovery was had, he may proceed under this section against the defendant not served (Harper v. Bangs, i8 How. 457).

c. Does this section apply to a judgment in a justice's court of which a transcript has been filed with the county clerk (see Johnson v. Smith, 14 Abb. 423).

* As to costs of proceedings under this chapter, see section 307, sub. 7.

d. The proceedings provided by this chapter, bear a strong similarity to the action of scire facius to obtain execution upon final judgment, after the death of the judgment debtor, and was, no doubt, intended as a substitute therefor (Alden v. Clark, 11 How. 213; post, $ 428 ; and as to suits against heirs, see Laws 1859, ch. 110).

a. A proceeding under this section is not a new action, and the party served cannot have the action removed into a federal court (Fairchild v. Durand, 8 Abb. 305).

§ 376. [329.) (Am’d 1849.] If judgment debtor die, his representatives may be summoned.

In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees, of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration npon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment debtor may be so summoned, at any tiine within one year after their appointment.

6. The provisions of this and the following sections to section 381 inclusive, do not authorize proceedings against executors personally (Mills v. Thursby, 11 How. 131 ; 12 id. 385; 2 Abb. 432).

c. The heirs, &c., must be proceeded against jointly and not separately, but that does not make them jointly liable as joint debtors (Kellogg v. Olmsted, 6 How. 487).

d. No suit can be brought against heirs to charge them with the debt of their ancestor within three years from the granting letters testamentary or of administration upon the estate of their ancestor (Roe v. Swezey, 10 Barb. 247).

e. In proceedings by Scire facias to revive a judgment, remainder men must be parties or they are not bound (Campbell v. Rawdon, 18 N. Y. 412).

$ 377. [330.] Forms of summons.

The summons provided in the last two sections shall be subscribed by the judgment creditor, his representatives, or attorney ; shall describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons; and shall be served in like manner as the original summons.

f. The defendant against whom judgment has already been obtained need not be named as a defendant in the summons issued pursuant to this section (Johnson v. Smith, 14 Abb. 421).

9. The summons need not specify any time or place to show cause, but specifying a time and place would not vitiate the summons (Townsend v. Newell, 14 Abb. 340).

$ 378. [331.) To be accompanied by affidavit of amount due.

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