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the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon: and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action he shall be entitled to five days notice of the time and place of such assessment.
2. In other actions the plaintiff may, upon the like proof apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days notice of the time and place of application to the court for the relief demanded by the complaint.
3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on [NOTES.]
account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, aud shall succeed in such defence.
It is unnecessary to enter an order for default in not answering. Watson vs. Brigham, 3 How. 290.
The clerk in ascertaining the amount of plaintiff's recovery, should file his report with the judgment roll. Squire agt. Elsworth and others, 4 How. 77.
Where the complaint contains several counts, and the answer denies only a part, the plaintiff may have judgment on those counts not denied. Tracy and others agt. Humphrey, 5 How. 155.
Where defendant has appeared but not answered, he is not entitled to notice of assessment. Where costs are adjusted without notice, it is the adjustment of costs only that is irregular. Dix agt. Palmer and Schoolcraft, 5 How. 233; Rickards vs. Swetzer, 3 How. 413.
Supreme Court, Rule 91. Judgment § 247. If a demurrer, answer, or reply be frivolous, the lous dean party prejudiced thereby, upon a previous notice of five
days may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.
On overruling a demurrer to a complaint as frivolous, leave to answer will not be given without an affidavit of merits. Appleby vs. Elkins, 2 Sand. 673.
No affidavit need be served with the notice of motion for judgment. Darrow agt. Miller, 5 How. 247.
The decision of the motion under this section is a judgment, not an order. King agt. Stafford and Maxwell, 5 How. 30.
It is for the court, not a party, to cide whether the pleading is frivo. lous. Hartness and others vs. Bennett, 3 How, 289; De Witt ads. Swift & Waldon id. 280.
swer or reply.
Issues and the mode of Trial.
249. Issue of law.
257. Order of disposing of issues on the calendar. § 248. [Sec. 203.] Issues arise upon the pleadings, when The differ
issues. a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds :
1. Of law; and
law. 1. Upon a demurrer to the complaint, answer or reply, Passed or to some part thereof.
$ 250. [Sec. 204.) An issue of fact arises,
1. Upon a material allegation in the complaint contro- Amended verted by the answer; or,
2. Upon new matter in the answer controverted by the reply; or,
3. Upon new matter in the reply, except an issue of law is joined thereon. $ 251. [Sec. 206.] Issues both of law and of fact may on issues
fact, arise upon different parts of the pleadings in the same ac- the issue of tion. In such cases, the issues of law must be first tried first tried. unless the court otherwise direct.
The date of the issue on the general term calendar, where an appeal is taken from a judgment upon a report of a referee, is the day of filing the report. Gould and others agt. Chapin and others, 5 How. 358.
Where there are issues of law and fact, and the cause is brought on for trial of the latter, the court will then determine whether it shall be tried before the issue of law is disposed of. Warner vs. Wigers, 2 Sand. 635. $ 252. [Sec. 208.] An issue of law must be tried by the court, Issue of
law trial by unless it be referred, as provided in sections 270 and 271. An court.
Issue of fact.
law to be
Issue of fact to be tried by
Other issues to be
Amended. issue of fact, in an action for the recovery of money only, or of
specific real or personal property, or for a divorce from the
marriage contract on the ground of adultery, must be tried by fact, tried
a jury, unless a jury trial be waived as provided in section Amended 266, or a reference be ordered as provided in sections 270 and
253. [Sec. 208.) Whenever in an action for the recovjurg, unless ery of money only, or of specific real or personal property, waived. or there shall be an issue of fact, it must be tried hy a jury
unless a jury trial be waived, as provided in section 266,
$ 254. [Sec. 209.] Every other issue is triable by the tried by the court, which, however, may order the whole issue, or any
specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271.
$255. [Sec. 210.] All issues of fact, triable by a jury or by
court, must be tried before a single judge. Issues of fact in the by a single judge. supreme court, must be tried at a circuit court when the trial 1949, 1851. is by jury, otherwise at a circuit court or special term, as Issues of the court may by its rules prescribe. Issues of law inust be eral term. tried at a general term, unless the court order the trial to be
had at a special term.
§ 256. [Sec. 211.) At any time after issue, and at least ten ty may give notice days before the court, either party may give notice of trial.
The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.
The day of service to be excluded, and the first day of the court included. Notice of trial for the 21st served on the 11th, held good. Dayton agt. McIntyre and others, 5 How. 117.
Note of issue.
See section 407, infra and notes, and Supreme Court rules 22, 23, 28, 37.
Commission to take testimony. The defendant will be allowed twenty days after service of reply to apply for a commission. Bank of Charleston vs. Hurlburt, 1 Sand. 717; S. C. 1 Code Rep. 96.
Commission may issue to examine adverse party. Brockway vs. Stanton, 2 Sand. 640; S. C. 1 Code Rep. 128.
It is not necessary that the moving papers should show what county the action is to be tried in. Blackmar agt. Van Inwager, 5 How. 367; Contra, Dodge vs. Rose et al. 1 Code Rep. 123.
Where a commission is likely to produce great injury, terms will be im. posed. Ring vs. Mott, 2 Sand. 683.
When the stay of proceedings will be vacated. Voss vs. Fielden, 2 Sand. 690. § 257. [Sec. 212.] The issues on the calendar shall be Order of
disposing disposed of in the following order; unless, for the conve- of issues nience of parties, or the despatch of business, the court calendar. shall otherwise direct:
1. Issues of fact to be tried by a jury ;
Trial by Jury.
259. Plaintiff to furnish court with copy summons, pleadings, &c.
when in action for recovery of money only, or real pro-
and when court may direct special finding.
265. Judgment when to be entered. § 258. [Sec. 213.] Either party giving the notice, may bring Either parthe issue to trial, and in the absence of the adverse party, unless bring issue the court, for good cause, otherwise direct, may proceed with
1851. his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants, may be allowed