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heard on

Amended 1849.


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without further notice, until finally disposed of; but if Dismissing

noi neither party bring it to a hearing before the end of the bal brought second term, the court shall dismiss the appeal, unless it continue the same, by special order, for cause shown.

The judgment will be reversed by default, if the respondent do not appear to argue the appeal. Whitney vs. Bayard, 2 Sand. 634; Contra Bellony: vs. Alexander, 1 Sand. 734.

§ 365. [Sec. 316.) The appeal shall be heard on the ori- To be ginal papers; and no copy thereof need be furnished for original pathe use of the court. § 366. [Sec. 317.] Upon the hearing of the appeal, the appel- Judgment

how given, late court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not 1849, 1551. affect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fuct. If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon examination of the witnesses. If the defendant failed to uppear before the justice, and it is shown by the affidavits served, or otherwise, that manifest injustice has been done, and the defendant satisfactorily excuses his default, the court may in its discretion set aside or suspend judgment, and order a new trial before the same or any other justice, at such time and place, and on such terms as the court may deem proper. The parties must appear before the justice according to the order of the court, and the same proceedings must thereupon be had in the action, as on the return of a summons personally served.

§ 367. [Sec. 318.] To every judgment upon an appeal Judgment there shall be annexed the affidavits or return on which it was heard, which shall be filed with the clerk of the court, and shall constitute the judgment roll. [NOTES.]


Costs, how awarded.

Amended 1849.


Amended 1849.

costs and recovery.

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9 368. [Sec. 321.] 'If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be

awarded to either party. Ordering $369. [Sec. 322.]If the judgment below, or any part there

of, be collected, and the judgment be afterwards reversed, the appellate court shall order the amount collected to be restored with interest from the time of collection. The order may be obtained upon proof of the facts made at or

after the hearing, upon a previous notice of six days. Setting off

§ 370. [Sec. 323.] If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance.

§ 371. [Sec. 324.] The following fees and costs, and no

other except fees of officers and disbursements, shall be allowed 1849, 1861. on appeals:

To the appellant on reversal, fifteen dollars.
To the respondent on affirmance, twelve dollars.
To a justice of the peace, for his return, two dollars.
If the judgment appealed from be reversed in part,

and affirmed as to the residue, the amount of costs allowed to either party, shall be such sum as the appellate court may award, not exceeding ten dollars.

If the appeal be dismissed for want of prosecution, as provided by section three hundred and sixty-four, no costs shall be allowed to either party.

Where the appeal is heard by the supreme court, because of the incompetency of the county judge, the costs will be the same as if heard by the county judge. Taylor vs. Seeley, 4 How. 314.

The fee to the ce must be paid at the time of the service of the notice of the appeal. Van Heusen and Charles agt. Kirkpatrick, 5 How. 422.

The costs on appeal.


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Of the miscellaneous proceedings in civil actions, and

general provisions. CHAPTER 1. Submitting a controversy, without action.

II. Proceedings against joint debtors, heirs, legatees, devisees,

and tenants holding under a 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 sheriff's and coroners.
XIII. Accountability of guardians.
XIV. Powers of referees.
XV. Miscellaneous provisions.


Submitting a controversy without action.
SECTION 372. Controversy how submitted without action.

373. Judgment on, as in other cases, but without costs.
374. Judgment may be enforced, or appealed from, as in an ac-

tion, $ 372. [Sec. 325.) Parties to a question in difference, Controverwhich might be the subject of a civil action, may, without without acaction, 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 proceeding 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.

8373. [Sec. 326.] Judgment shall be entered in the judg- Judgement ment book, as in other cases, but without costs, for any pro- but without ceeding prior to notice of trial. The case, the submission, and a copy of the judgment shall constitute the judgment 18mg. roll.

on, as in

other cases



Judgment may be enforced or

$ 374. [Sec: 327.] The judgment may be enforced in the appealed same manner, as if it had been rendered in an action and an action." shall be subject to appeal in like manner.

See Supreme Court Rules 30, 32.

Parties not suinmoned in action on joint contract,

may be



Amended 1849.

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

381. Answer and reply to be verified as in an action. $ 575. [Sec. 328.] 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, after judg- 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. If judg;

$ 376. [Sec. 329.] In case of the death of a judgment or die,

debtor after judgment, the heirs, devisees, or legatees of sentatives 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 upon 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 time within one year after their appointment.

$ 377. [Sec. 330.] 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

ment debt

his repres

may be


Amended 1949.


Form of suinmons


of amount due.




twenty days after the service of the summons; and shall be served in like manner as the original summons.

§ 378. [Sec. 331.] The summons shall be accompanied To be acby an affidavit of the person subscribing it, that the judg

by affidavit ment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon.

§ 379. (Sec. 332.] Upon such summons, the party sum-moned may moned may answer within the time specified therein, deny- and defend. ing the judgment, or setting up any defence which may Amended have arisen subsequently; and in addition thereto, if he be proceeded against according to section 375, he may make the same defence, which he might have originally made to the action except the statute of limitations.

§ 380. [Sec. 333.] The party issuing the summons, may pleadings, demur or reply to the answer, and the party summoned may ceedings, demur to the reply and the issues may be tried and judgment an action. may be given, in the same manner as in an action, and enforced by execution, or the application of the property charged to the payment of the judgment, may be compelled by attachment, if necessary.

§ 381. [Sec. 331.] The answer and reply shall be veri- Answer fied in the like cases and manner, and be subject to the fied, as in same rules, as the answer and reply in an action.



Amended 1849.

and reply


an action.

Amended 1949.

Confession of Judgment, without Action.
Section 382. Judgment may be confessed for debt due or contingent lia-

383. Statement in writing, and form thereof.

384. Filing same, and entering judgment. $ 382. [Sec. 335.] A judgment by confession may be en- Judgment tered, without action, either for money due or to become confessed, due, or to secure any person against contingent liability ingent lia

bility. on behalf of the defendant, or both, in the manner prescribed by this chapter.


due or con

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